Protection for women on maternity leave must be proportionate

In Eversheds Legal Services Ltd v De Belin [EAT/0444/10], one of the redundancy selection criteria was known as “lock up”. Lock up is the length of time between an employee starting a piece of work for a client and receiving payment for the work.

The minimum lock up score was 0.5 points. The maximum lock up score was 2 points.

Mr De Belin and Ms Reinholz were in the redundancy selection pool. Mr De Belin was awarded a lock up score of 0.5 points. However, a current lock up score could not be awarded to Ms Reinholz because she was on maternity leave. As a result of this, she was awarded a notional score of two points.

The overall redundancy scores for Mr De Belin and Ms Reinholz were 27 and 27.5 points respectively. Since Mr De Belin had the lower overall score – he was made redundant.

Mr De Belin argued that if Ms Reinholz had not been awarded the maximum lock up score – there would have been a tie - or she would have a lower overall score than him. Mr De Belin suggested alternative scoring methods, e.g. awarding an actual lock up score to Ms Reinholz that was based on the last period at which she was at work.

The employer replied that it did not want Ms Reinholz to lose out due to her maternity absence and risk a sex discrimination claim from her.

Mr De Belin claimed that he was a victim of unlawful sex discrimination and unfair dismissal. The EAT agreed.

Sex discrimination

The employer had unlawfully discriminated against Mr De Belin on the grounds of his sex – when it awarded a notional maximum lock up score to Ms Reinholz - but awarded an actual lock up score to Mr De Belin.

The scoring method applied to Ms Reinholz was a disproportionate means of ensuring that she did not lose out due to her maternity absence. There were alternative ways of removing her maternity-related disadvantage without putting Mr De Belin at an unfair disadvantage. For example, Ms Reinholz’s lock up score could have been an actual score that was based on the last period at which she was at work.

Unfair dismissal

Mr De Belin’s dismissal was unfair. It was unreasonable for the employer to believe that it had no choice - but to award a notional maximum lock up score to Ms. Reinholz - when it became clear that the score would decide that Mr De Belin would be made redundant.