A male assistant solicitor made redundant by Eversheds in Leeds was the victim of unlawful sex discrimination, the Employment Appeal Tribunal has ruled.
The EAT heard that John De Belin’s female colleague in the real estate investor team was given top marks in one of the tests used to select people for redundancy despite being away on maternity leave.
De Belin was awarded £123,000 by an employment tribunal in April last year.
Giving judgment in Eversheds Legal Services v De Belin (UKEAT 0352/10/0604), Mr Justice Underhill said Angela Reinholz was absent on maternity leave and so could not be scored for ‘lock up’, the period between taking on work and being paid by the client.
Eversheds decided to award her the maximum score for ‘lock up’, which was 2. De Belin, who had more points otherwise, only scored 0.5. As a result he ended up with 27 points compared to his colleagues 27.5 and was selected for redundancy.
He argued that ‘lock up’ performance should have been scored either by giving both of them the same score of 1, or scoring her at the last date before her maternity leave.
The EAT heard that if the second test had been used, Reinholz would only have scored 0.5 and would have ended up with less points.
“Eversheds accepted that the result might appear unfair, but they said that their approach was required by law in order to see that Ms Reinholz did not lose out by her maternity absence and thus to avoid the risk of a sex discrimination claim from her,” Underhill J said. “They declined to change their position, and the claimant’s dismissal proceeded accordingly.
“It will be clear from that account that the claimant has suffered a real injustice. By giving Ms Reinholz a notional maximum score, while he was given his actual score, Eversheds gave her an advantage over him which was not based on an assessment of their respective merits, and that advantage is very likely to have made the difference between him keeping and losing his job.”
Underhill J said both EU and domestic law recognised that “special treatment” for women who were pregnant or on maternity leave might be legitimate.
He said the “real issue” was whether this case fell within the exception. Underhill J went on: “In our view the most satisfactory alternative was to measure the lock up performance of both the candidates for redundancy as at the last date that Ms Reinholz was at work.
“The only justification for treating the woman more favourably is the need to see that she is not disadvantaged by her condition, and where the treatment in question goes beyond what is reasonably necessary for that purpose a real injustice may be done to a colleague,” Underhill J said.
“Quite apart from the matter of principle, it is important not to bring into disrepute the legislation which protects pregnant women and those on maternity leave by giving it a wider scope than is properly required.”
Mr Justice Underhill concluded that in the EAT’s view the most “satisfactory alternative” to awarding Reinholz maximum marks in her absence was to measure the ‘lock-up’ performance of both candidates for redundancy as at the last date that Reinholz was at work.
Underhill J said that under section 2(2) of the Sex Discrimination Act 1975 “special treatment afforded to women in connection with pregnancy and childbirth” referred only to treatment which constituted a “proportionate means of achieving the legitimate aim” of compensating the woman involved for disadvantages of pregnancy and childbirth. The EAT dismissed Eversheds’ appeal.
Rachel Dineley, head of diversity and discrimination at Beachcroft, said the EAT ruling “reflected the need for an employer to undertake a balancing exercise when making decisions of this kind.
“The action taken to ensure that a woman is not disadvantaged by her condition needs to be proportionate,” she said. “If it goes beyond what is reasonably necessary, others who may be adversely affected will be entitled to complain.
“As the judge rightly points out, it is important not to bring into disrepute the legislation that protects women in these circumstances.”
A spokeswoman for Eversheds said: “The firm stands by the decisions it took with respect to the treatment of women on maternity leave, which it believes is consistent with its obligations under EU and UK law.”
Note: This story by Nicholas Hilborne first appeared in Solicitors Journal
www.bailii.org/uk/cases/UKEAT/2011/0352_10_0604.html