The case of Eversheds Legal Services Ltd v De Belin was borne out of a redundancy situation. The respondent, a well-known firm of solicitors, decided in September 2008 that it needed to make redundant one of the two Associates (qualified lawyers) in the real estate investment team at its Leeds office. One of the associates was Mr De Belin; the claimant. The other was a Ms. Reinholz. She was away on maternity leave and had been for some time.
A scoring exercise was undertaken. One of the criteria focused on certain aspects of the associates' financial management of the client files for which they were responsible. Because Ms. Reinholz had been away for much of the relevant period Eversheds' view was that they could not score this aspect of her performance and so, given that her absence was maternity-related, decided on a "notional" basis to award her the highest mark possible.
Mr de Belin was awarded a lower mark (based on his actual performance) and he was ultimately made redundant. He complained that the awarding of the "notional" highest mark was sex discrimination. He succeeded in the Employment Tribunal succeeded and was awarded more than £120,000 in compensation. Perhaps unsurprisingly Eversheds appealed.
The Employment Appeal Tribunal, having considered the issue carefully, dismissed the appeal. It felt that although employers clearly do have a special obligation to protect employees on maternity leave this should not extend beyond taking steps which were "reasonably necessary to compensate them for the disadvantages occasioned by their condition". In this case Eversheds' approach to the comparison was disproportionate. It could and should have done something which would not have disadvantaged Mr de Belin to the same degree - for example by looking at actual like-for-like performance of the two associates during the most recent period in which they were both present at work.
Stephen Elliott, Partner
Employment