A female lawyer, Gemma Long, has been discriminated against after returning from maternity leave. She was told she was not focusing on her work and had a performance assessment which was ‘stacked against’ her as a working mother. The tribunal was held at Reading in December 2021 and Judge Gumbiti-Zimuto said that she was not scored in good faith and found the lawyer was dismissed due to sex discrimination and the unfair dismissal was upheld.
The lawyer was working for British Gas as an intellectual property counsel between January 2012 and July 2019. She had maternity leave from the 29th May 2016 to return to work on the 11th September 2017. As well as this pregnancy, she had two year old triplets, and a son with significant additional needs.
On return to work after her maternity leave, she was contracted to work Monday to Wednesday, 8am to 4pm and had a workload that was shared with another solicitor. The second solicitor resigned in June 2018, 9 months after Long returned from maternity leave. The tribunal heard long started to feel pressure, by her line manager, Sarah Hartnell, to work on her non-working days. There was evidence of this including emails between Hartnell and another line manager, Vicky Wells, in which Hartnell was asked “are you going to speak to Gemma this week about not dropping everything when she leaves on Weds?.. I’ve also told her that the work doesn’t stop at 4pm on a Wednesday” which was found to be unsustainable and unreasonable of Long’s work.
In 2018, Long had a performance review which she was given a mix of positive and negative feedback. However, in an email on 6th March 2019, she was told she was being placed on a Performance Improvement Plan (PIP) which was due to her ‘below expectations’ performance rating. Three months later on 6th June, Long was told she was at risk of redundancy. The tribunal noticed Hartnell used the performance rating from 2017 when it should have been 2016 rating, as Long was on maternity leave in 2017 and could not be assessed for the full year.
Hartnell also scored Long a 1 out of 7 for ‘Focus’ on a scoring matrix. The low score means the person rarely demonstrates this or sometimes demonstrates the opposite, however the tribunal was told by Hartnell that her focus was ‘good in respect of the lion’s share of her work’. Long was informed of being at risk of redundancy in a phone call. However she was not given the opportunity to use anything to help improve her outcome on the scoring matrix. The tribunal found that Long felt the criteria of ‘Focus’ was stacked against her as a working mother. Long was made redundant in a letter on the 12th July, she appealed this decision but was not successful.
The tribunal concluded that Long had been treated unfairly and less favourably compared to a full time employee. The lawyer was dismissed due to direct sex discrimination and Judge Gumbiti-Zimuto said “these matters in out view also allow us to infer that Long’s personal circumstances as a mother of young children was unconsciously being held against her”. The tribunal also agreed with a complaint made by Long about equal pay when it was found that British Gas paid her male colleague £2,000 a year more than her.
Constantine Law partner, Alan Lewis, said firms need to avoid criticising employees because they work part time. He said “It is very important that employers have regular and up to date training on diversity and equality so points such as the above can be brought into educating employees as to what is expected of their behaviour and management approaches”. He added that regarding equal pay claims, the employer relies on market forces defence to justify the pay gap, they need to have credible evidence to support that defence. A simple suggestion that an individual in the HR team that the company has to pay more to secure the male individual is not enough.
A managing director at Croner, Paul Holcroft, also commented on the case. Adding that while redundancies are sometimes essential, if the process is not complete properly, claims can still arise. “All aspects of the selection process must be equal to all employees. This includes when deciding who should be included as being at-risk of redundancy, developing the selection criteria to use and, ultimately selecting an individual for redundancy”. He added the selection process should focus on scoring, which can be justified by reference to other documents such as employment contracts or appraisal forms.
If you need help understanding equal pay rights and how to fairly dismiss an employee, contact us at Beagle HR for advice and assistance.
