Top legal firm dammed if they did and dammed if they didn't - or were they?
During May 2010, national legal firm Eversheds lodged an appeal against an Employment Tribunal ruling that it must pay £123,300 in compensation to a male solicitor – Mr De Belin. Mr De Belin succeeded with a claim for sexual discrimination in circumstances where he was selected for redundancy ahead of a female solicitor returning from maternity leave.
Eversheds’ redundancy procedure employed a points system scored against a range of criteria. One of the criterion (carrying a maximum of 2 points) scored potential candidates in relation to how quickly they recovered outstanding fees/debts (lock-up) from their clients. A female colleague of Mr De Belin, was automatically awarded the maximum two points for this criterion because Eversheds were not able to assess her, owing to her being on maternity leave for the prescribed period. It appears Eversheds employed this approach because they were fearful of a claim for sex discrimination from the woman returning from maternity leave.
Mr De Belin was awarded only half a point for this criterion, giving him a total of 27 points compared to his female colleague’s 27.5. This resulted in him being selected for redundancy and ultimately succeeding with a claim for sex discrimination.
Mr De Belin has said “An employment partner in the redundancy process stated to me that the firm was acting on a risk management basis so as not to give a woman on maternity leave any chance of taking legal proceedings against them.
There are only two of us in the redundancy pool and the issue of lock-up could have been approached fairly in many ways. However the risk management process seemed to dictate that it was not relevant.”
Ironically, Eversheds have fallen foul of the Sex Discrimination legislation in an attempt to minimise the risk of a claim for sex discrimination! This highlights the difficulties facing employers conducting redundancy procedures or handling employees generally. Previously, employers may have been under the misconception they should protect against the risk of a claim from a pregnant employee by affording her extra protection. However, this case confirms this is a dangerous tactic for employers to adopt and can lead to claims from male employees.
Ultimately as Mr De Belin indicated, there were a variety of ways in which Eversheds could have avoided this situation. The obvious approach would have been to remove any criteria that might adversely affect an employee returning from maternity leave. Perhaps this is something they considered, but after realising this would result in the female employee being selected for redundancy, they decided against it.
Some might argue they were “damned if they did and damned if they didn’t”. However, if Eversheds had removed the criteria pertaining to lock-up and selected the female employee for redundancy, they may well have stood a greater chance of defending a claim from her, than they did from Mr De Belin.
If you require advice in relation to a redundancy exercise or any other employment related matter, please contact either James Twine on 01752 292351 or Eoin Fowell on 01752 292350.
