Eversheds v De Belin - you're damned if you do…

23/06/2011

By Nick Hobden, Partner and Head of Employment

Far be it from us to draw to the attention of our readership the possibility that lawyers might ever get things wrong. But you may just take some comfort from knowing that even lawyers sometimes find themselves on the receiving end of Employment Tribunal claims. This is precisely what happened in the recent case of  Eversheds v De Belin.

The facts

Back in 2008 Mr De Belin and Ms Reinholz, both property lawyers at a firm called Eversheds, were warned that they were at risk of being dismissed by reason of redundancy. They were pooled for selection and various criteria were devised in order to measure the employees' performance and decide who should stay and who should go. One of the criteria related to how quickly the employees were able to convert their work into paid invoices. Mr De Belin's performance in this regard was measured over the previous 12 months and he received a score of 0.5 out of 2; a very low mark. At the time of the redundancy, and for some time previously, Ms Reinholz had been on maternity leave. As a result, Eversheds decided to award Ms Reinholz a notional score of 2, bearing in mind that they were unable to measure her performance against this criterion over the same period of time as Mr De Belin. Unfortunately, having totted up the scores, Mr De Belin scored 0.5 points lower than Ms Reinholz and was, as a result, selected for redundancy.

Despite raising a grievance over the scoring mechanism adopted by Eversheds, the firm maintained that it had acted correctly, claiming that it was required to protect the interests of pregnant women and women on maternity leave under sex discrimination legislation. After he was subsequently dismissed, Mr De Belin brought claims for unfair dismissal and sex discrimination.

The decision

After the Employment Tribunal found in Mr De Belin's favour, awarding him just over £123,000 in compensation, Eversheds appealed to the Employment Appeal Tribunal (EAT). There, they continued to argue that they could not be held to have discriminated against a man, if the treatment on which he was relying was something done in order to protect the interests of an employee on maternity leave. However the EAT concluded that whilst pregnant employees and those on maternity leave were entitled to special treatment, this could not justify the disproportionate favouring of such women. The EAT went on to hold that Eversheds' conduct was disproportionate; there were other, less discriminatory, ways in which they could have addressed Ms Reinholz's absence which they ought to have considered. As a result, they were guilty of sex discrimination in the way in which they had treated Mr De Belin.

Comment

The facts in the De Belin case are fairly unusual. However, the decision emphasises the ever-expanding importance of balancing the various competing rights granted to different categories of employees. In truth, presumably Eversheds were simply trying to ensure that they did not discriminate against a woman on maternity leave. Who can criticise them for that?  However in doing so, they clearly went too far and ended up discriminating against Mr De Belin. It is not enough just to presume that the woman should be given the benefit of the doubt. Instead, employers should consider whether there is an alternative approach that will have a less discriminatory effect. Complying with employment law, unfortunately, is not getting any easier.