|Pinsent Masons employment partner Jon Fisher says this case serves as a reminder to take a common sense approach when applying redundancy selection criteria.|
Employers have been urged to look closely at their redundancy criteria after a tribunal ruled that law firm Eversheds unfairly dismissed a male employee because it feared a discrimination claim if it axed his pregnant colleague.
John de Belin won £123,000 in damages after successfully claiming sex discrimination and being “deprived of his livelihood” following the law firm’s decision to make him redundant. Eversheds has lodged an appeal against the ruling.
Chris Syder, head of employment at law firm Davies Arnold Cooper, said it was a “fascinating case” that would force employers to rethink how they score against their redundancy criteria to reduce the risk of a tribunal determining the scoring exercise is discriminatory.
De Belin, 45, and his pregnant colleague Angela Reinholz, 40, both faced redundancy from Eversheds’ property division in Leeds. Eversheds’ redundancy programme was based on a points system judged against certain criteria.
The law firm undertook an assessment of both de Belin’s and Reinholz’s abilities, including financial performance, discipline history and absence records. After losing by half a point, de Belin was made redundant in February 2009, but he later learned that the test score had been ‘unfairly inflated’ to the advantage of his female colleague.
This is because, even though Reinholz was on maternity leave for the assessment period, she was given the maximum notional score for her ability to swiftly secure ‘lock-up’ payments from clients.
In the judgment, judge Jeremy Shulman said: “We do not find that the Sex Discrimination Act was intended to protect a woman on maternity leave in a redundancy-scoring exercise where we find that she received an unfairly inflated score, when all other scores were actual, the notional score being designed to defeat a tribunal case by Ms Reinholz.”
Syder said he was surprised that Eversheds inflated her lock-up score. “This involves a subjective assessment which will be open to interpretation and creates greater legal risk when the scoring is very close,” he said. “Employers must be vigilant to ensure the scoring against redundancy criteria is fair and impartial.”
Simon Ost, employment partner at law firm Hammonds, added: “This is a powerful illustration of a trap that many well-intending employers fall into: namely making commercial decisions that are too heavily focused on avoiding legal risks. This can lead to poor commercial decisions and, in the context of discrimination law, it can itself amount to discrimination.”
For tips on handling redundancy, see XpertHR’s top 10 employment law implications of economic recovery.