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MATERNITY LEAVE = “UNFAIR ADVANTAGE” IN REDUNDANCY
July 2010
A major law firm has recently been ordered to pay a male employee over £123,000 in compensation after its redundancy selection criteria unfairly favoured a woman on maternity leave. What can you learn from this unusual case?
Redundancy fallout
Last year, in an attempt to save costs, Eversheds (E) made widespread redundancies. But a recent tribunal ruling shows just how costly it can be if an employer gets the process wrong. So how did this firm of solicitors manage to trip up over an area of law that it claims to specialist in?
The background facts
John de Belin (B) was an associate solicitor at its Leeds office. In February 2009 he was placed into a redundancy selection pool of two. The other candidate was a female solicitor, Angela Reinholz (R) . E’s selection criteria included “lock up”, ie. financial performance. Here, B and R could be awarded a score of between 0.5 and 2, based on how quickly they secured payment from a client during a certain six week period.
Staying away from danger?
During that time R was away on maternity leave and could not have chased any bills for payment. Regardless, E awarded her the maximum mark. This was to avoid R making any allegation of sex discrimination. E was conscious that it could not treat her less favourably for any reason connected to her pregnancy.
Risk. Where this occurs, a woman will be entitled to claim sex discrimination, i.e. a man would not have been treated in the same way.
Net result. E’s scoring decision meant that B achieved an overall score of 27 (out of a possible 39 marks). By comparison, R was awarded 27.5. So with only 0.5 marks in it, B was made redundant, and R kept her job.
Unfair advantage
B mounted a claim for unfair dismissal and (rather unusually) sex discrimination, on the basis that E’s selection criteria gave his female colleague an “unfair advantage” in the redundancy process. E defended its position by saying that under the Sex Discrimination Act 1975 it had “no choice” other than to give R an inflated score.
That’s so wrong
The tribunal disagreed. It noted that had the lock up scoring been removed from the equation, B would have achieved the higher score and R would have been the one made redundant. It said that E’s scoring system appeared to be designed solely with the intention to “defeat any possible claim brought by R”. But by doing so it discriminated against B on the grounds of his sex. He was awarded £123,000. E says it intends to appeal.
The result
This is an unusual case, but it by no means sets a precedent that women on maternity leave should be treated less favourably. Instead, it sends a clear warning that redundancy selection criteria used must be fair to all employees and jot weighted in favour of one particular group.
Tip, Had E not used the lock up criterion, it’s likely that neither B or R would have been able to mount claims at all. Only use objective grounds as detailed in our own redundancy selection criteria/ / it’s safer to leave out any that are questionable.
Source: Tips & Advice Personnel June 10 2010
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