Even leading law firms can get it wrong. What do employers do if they have to make redundancies and one of the candidates has been absent on maternity leave? That gave rise to a dilemma for national solicitors’ firm Eversheds. They have lost a legal battle but it is possible that they will win the financial war as compensation awarded against them is to be reassessed.

Eversheds had to dismiss as redundant one of the two solicitors in a particular department. There was a potential sex discrimination problem because one was a woman and the other a man. The woman had recently been absent on maternity leave and one of the criteria used in the selection process concerned levels and timings of billing. That criterion would obviously weigh against her as she had been away. Not wanting to be accused of sex discrimination by the woman concerned, Eversheds decided that the most appropriate way to play fair was to deem that for redundancy selection purposes she had had a good billing performance record. They awarded her “points” on that basis.

In the event it was the male solicitor, who had been with Eversheds for 14 years, not the woman, who was selected for redundancy. Eversheds then faced a sex discrimination claim by him.

He had complained from the start that the “favouritism” shown to his female colleague amounted to sex discrimination against him. Eversheds had clearly been in a quandary but felt what they were doing was fair and that if he sued them they would be able to rely on an exception in the anti-sex discrimination statute to the effect that in considering whether a man has suffered unlawful sex discrimination “no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth”.

He did sue. And he won. Not only did he win, but the employment tribunal awarded him well over £100,000, mostly for loss of future earnings. The tribunal refused to take into account the possibility that he might have been dismissed anyway a few months later in a separate redundancy exercise on the basis that this was mere speculation. Eversheds, no doubt feeling badly treated, appealed to the Employment Appeal Tribunal, both against the decision that they had acted unlawfully and against the amount of compensation.

At the appeal they lost on the first of these points. The President of the EAT said that the exception noted above should be construed “in a manner which incorporates the principle of proportionality”. On the facts of this case Eversheds had gone beyond what was reasonably necessary – there were alternative ways of removing the maternity related disadvantage to the woman without unfairly disadvantaging the male claimant. Eversheds had gone over the top in the method they used to ensure that she would not be placed at a disadvantage in the redundancy selection process.

However Eversheds did win on the compensation point to the extent that the EAT sent that aspect back for reconsideration by a different employment tribunal. In doing so the Appeal Tribunal made the important point that the employment tribunal had a duty to take a view on whether the claimant in the case would have been dismissed anyway a few months later in a second redundancy exercise notwithstanding that this would involve a significant degree of speculation. Quoting from an earlier judgment, the President said that “The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence” and gave a strong steer to employment tribunals that when assessing compensation in a dismissal case they should not decline to undertake a “would he have been dismissed anyway?” exercise merely because it involves speculation.

For those who want to read the full story, the EAT judgment in Eversheds Legal Services Ltd v de Belin, is available on the internet.