Many employers have faced the problem in a redundancy exercise of how to score an employee on maternity leave against their working colleagues, and a recent case in the Employment Appeal Tribunal “EAT” Eversheds v de Belin gives us the correct approach.
The employer, a well-known firm of solicitors, was making redundancies. In one pool, they had two staff; a man Mr de Belin who had scored 27, and a woman, who was on maternity leave, who scored 27.5, so Mr de Belin was dismissed as redundant. Mr de Belin felt that his scoring was unfair, and he was only 1 point from clear safety.
One criterion called “lock up”, with 2 points up for grabs was based on the rate of file closure. Eversheds didn’t have file closure data for the employee on maternity leave, as she had no files in the assessment period, so the two employees weren’t scored like-for-like. Mr de Belin’s lock-up score was 0.5 out of 2, based on his actual data, and Eversheds gave the woman a notional maximum score of 2. This score ensured that she was saved from redundancy, at Mr de Belin’s expense. Had she scored any lower, it would either have been a tie on 27, or Mr de Belin would have been saved from redundancy.
Mr de Belin claimed Unfair Dismissal and sex discrimination, as he had been treated less favourably than a female colleague when his score had not been adjusted, whereas her score was. Eversheds argued that they had to give someone on maternity leave maximum marks to avoid disadvantaging her due to maternity leave. That argument was rejected and Mr de Belin won his Tribunal, and was awarded compensation of £123,053.03, and as the dismissal was discriminatory, the cap on the award didn’t apply.
The Tribunal held that giving an employee on maternity leave a maximum score was sex discrimination against Mr de Belin as a man, and also that the dismissal was generally unfair as Eversheds took an unreasonable approach to scoring Mr de Belin. Eversheds appealed to the EAT.
The key question was whether Eversheds had gone overboard in trying to meet its obligation to protect an employee on maternity leave from any disadvantage, and ended up favouring her, and therefore treating a man less favourably for a sex-related reason (her pregnancy and maternity leave), the EAT agreed with the Employment Tribunal, holding that:
“…the obligation… …cannot extend to favouring pregnant employees or those on maternity leave beyond what is reasonably necessary to compensate them for the disadvantages occasioned by their condition…”
The EAT also said:
“…the Claimant (Mr de Belin) has suffered a real injustice. By giving Ms. Reinholz (his colleague) 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…”
The judgment did not decide what an employer should have done, unfortunately that will always depend on the facts of a particular case, but it did suggest that the scoring for the criteria could have been changed to consider a period when both members of the pool were at work or that data from a different time period could have been used, or the criterion be dropped altogether.
The key point in this case is that where an employer is scoring a pool and an employee’s score is affected by either pregnancy or maternity leave, and indeed other possible reasons that could be discriminatory, any adjustment to the absent employee’s score should be made with a view to levelling the playing field rather than tilting it her favour, for fear of dismissing someone who is pregnant or on maternity leave.
Employers faced with this type of situation should make sure that they have criteria that they can score objectively, and that if any employee’s score (often performance- or attendance-related) is affected by pregnancy or maternity leave, then they should look at all criteria to ensure:
(i) the affected employee isn’t disadvantaged due to their condition; and
(ii) any changes made to that employee’s scoring don’t prejudice other employees.
Employers therefore shouldn’t “throw a man overboard” in a redundancy pool simply because a woman on maternity leave is in the pool and her scores are low, it all comes down to following a fair, reasonable and, where possible, objective selection process that avoids discriminating one way or the other.
The EAT did allow Eversheds’ appeal on the amount of compensation, as there was good evidence that Mr de Belin would have been made redundant later anyway had he not been dismissed, and sent the case back to the Leeds Employment Tribunal for re-consideration of compensation.