A case has recently caught our eye as it shows that good intentions may not prevent a company from losing an employment tribunal. The case involved a firm of solicitors who treated a woman favourably simply because of her maternity leave. Presumably it did this with the best of intentions but the result was that in doing so it sexually discriminated against a man. That man was awarded well over £100,000 in sex discrimination compensation.
The case involved a solicitor working at the well known national firm of solicitors, Eversheds. The solicitor is male and was awarded £123,300 in sex discrimination compensation against the firm. He and a number of other lawyers were at risk of redundancy and a performance based scoring matrix was used to determine who would be dismissed. One of the criterion used was how quickly the individual lawyers could get their clients to pay the bills and this was scored, apparently, out of a maximum of 2.
Because one of the people at risk of redundancy had been on maternity leave she hadn’t been at work during the period for which was to be tested. The law firm made the decision, to give her the benefit of the doubt and thus gave her the maximum two marks for this criterion.
However, the solicitor, John Belin, successfully claimed that the firm’s decision to allow the woman to score the maximum two marks on that particular criterion was sex discrimination. He was given a score for that criterion, based on his actual ability to get the clients to pay their bills, and presumably scored less than the maximum. The overall result was, when the other criteria were taken into account, that he scored half a point less than she did. This resulted in her being kept on whilst he was dismissed.
The Tribunal commented that the firm had incorrectly interpreted the Sex Discrimination Act 1975 and awarded a substantial amount of compensation. It would appear to this firm of employment solicitors that where a woman would be otherwise disadvantaged by one part of a scoring matrix, because of not having been there at the relevant time, the disadvantage should be removed by testing the criterion over a different period i.e. when she was there. On that basis it would appear that no sex discrimination would have taken place.
Furthermore, we wonder whether the law on suitable alternative employment for women at risk of redundancy while on maternity leave was considered. The law is that a woman on maternity leave at risk of redundancy has a right to be offered any job that is both suitable for her and available for her to do. There is a separate article on this website about this subject. If Eversheds was scoring two (or more) employees with a view to retaining at least one of them then the remaining job would have been a vacancy which the woman should have been offered if it was suitable as this is what the law says. It appears that the job was suitable for the women as she was being scored as part of Eversheds’ consideration for it. Perhaps we will learn more later as we understand that Eversheds are considering an appeal to the Employment Appeal Tribunal (the ‘EAT’). It may be that the women in this case was not on maternity leave at the time when scoring was done and that this was the reason why this area of law was not mentioned.
We would be happy to advice any company on this area of law further and to deal with any discrimination claims that may be bought. As such, on this, or any other employment law issue, please do not hesitate to contact Steen & Co Employment Solicitors.