Avoiding discrimination in redundancy

A recent case highlights the tension between the principle of equal treatment between men and women and ensuring pregnant women and those on maternity leave are protected from unlawful discrimination.

John de Belin, an associate solicitor at Eversheds, was made redundant in preference to his female colleague, Ms Reinholz. One of the redundancy selection criteria was "lock-up" (the period of time between a piece of work being undertaken and the receipt of client payment). Eversheds' decision to artificially inflate the score for his colleague's lock-up (by awarding her the maximum on the ground that she was on maternity leave at the relevant time) had a crucial effect on the outcome of the redundancy process. If any score other than full marks had been given to Ms Reinholz in relation to that criterion she would have been selected for redundancy rather than Mr de Belin.

At the heart of the debate is the degree of protection that the law provides to women who are pregnant or on maternity leave, and in particular whether or not they have a right to be treated more favourably than their colleagues. The tribunal grappled with two competing concepts set out in the legislation:

• the principle of equal treatment applies to both men and to women; and
• no claim of unlawful discrimination arises out of "special treatment" afforded to women on the grounds that they are pregnant or on maternity leave.

In an attempt to avoid a sex discrimination claim from Ms Reinholz, Eversheds placed more emphasis on the second principle and took the view that the purpose of the legislation was to provide women on maternity leave with a high level of protection, and that it did this in part by insulating employers from discrimination claims from men arising out of such special treatment.

The tribunal felt that blanket protection for pregnant women went too far and encroached too heavily on the principle of equal treatment. The tribunal, however, left open the question of where the balance between these two competing concepts should be struck, which allows scope for Eversheds to mount a challenge on this aspect of the decision on appeal.

Eversheds arguably also have room to challenge the tribunal's decision on a second ground, namely whether or not the correct comparator (ie the person in relation to whom the treatment afforded to Mr de Belin should be compared) was applied. The tribunal took the view that Ms Reinholz was an appropriate comparator, but the legislation provides that the comparator must be one whose circumstances are "the same or not materially different" to the person bringing the claim. Arguably therefore, Mr de Belin should have been compared to a woman who was in exactly the same situation as he was (ie not on maternity leave but facing selection for redundancy in a pool including Ms Reinholz). On that analysis a woman would have been treated in exactly the same way and his treatment could not be said to have been "on grounds of sex". It is not at all clear that Mr de Belin can rely on the authorities which state that there need be no comparator in cases involving pregnancy or maternity (on the grounds that only women can be pregnant) since in those cases the woman was the party raising the claim rather than the suggested comparator.

Gillian Mair is a senior solicitor in the employment team at Brodies LLP.

Additional resources on HR & Compliance Centre

• Redundancy: top 10 pitfalls for employers The pundits may be telling us the recession is past its worst, but redundancies are still having a huge impact.
• Sexism ruling prompts redundancy rethink 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 a pregnant colleague.
• XpertHR's FAQs section provides information on all aspects of redundancy rights.