Article written by Noella Gooden, Solicitor (Australian qualified), Employment department
An Employment Tribunal (ET) found in favour of a mother who claimed that her employer assumed she was not performing as well as a full-time male colleague and that she was less focused, because she was a woman with triplets working three days per week.
In this case, the claimant was employed as a solicitor for British Gas. She had approximately 9 years of experience in her chosen field, of Intellectual Property law, and some 7 years of service with her employer. The claimant took maternity leave in 2016, and returned in 2017 on a part-time basis, working Monday to Wednesday, between the hours of 8am until 4pm. At the time of her return to work, she was a mother of 2-year-old triplets and a son with significant additional needs.
In 2017, the claimant received a performance review that was ‘glowing’, and she was marked as ‘Exceeding Expectations’. Unfortunately, due to the employer’s policy on performance reviews for staff who had not worked for the entire year, her performance was downgraded to ‘Achieving Expectations’. The claimant had of course been absent for a part of that year on maternity leave.
On her return from maternity leave in September 2017, the claimant worked in a team of two. In June 2018, the claimant’s colleague resigned. From September 2018, the claimant took on the workload of the colleague, whilst working her part time days. She was also given a pay increase to £78,000 per annum (FTE). Following her salary increase, the claimant began to feel pressure to work on her non-working days from her manager. Her manager sent her an email that stated: “… we discussed you being more flexible around mon- wed given that work does not stop and people cannot always wait from Wednesday to the following Monday…[and I] would suggest you keep an eye on email”…
British Gas did not hire another lawyer into the colleague’s role until March 2019, during which time the claimant covered for both roles. The person hired was a man who had nine years less experience than the claimant. He was offered a higher salary at £80,000 per annum.
In January 2019, the claimant had a performance review, and her manager marked her as ‘Below Expectations’ and said she ‘lacked focus’. The claimant had not been notified of any alleged serious performance concerns in writing, prior to the performance review held in 2019.
In the ET, the claimant argued that her manager made no allowance for the fact that from September 2018, her workload had more than doubled. In the ET, the claimant’s manager conceded that some of the factors relied upon to give the claimant a poor rating was in fact beyond the claimant’s control. The claimant was not given the opportunity to appeal or otherwise challenge the decision.
In June 2019, the claimant was informed that she was at risk of redundancy. There was a pool of two, consisting of claimant and her new colleague. The ET noted that ‘the respondent did not make any assessment of the workload… there was no evidence that any employees or representatives were consulted about the selection criteria to be used’. In the scoring matrix, the claimant was scored 1 out of 7 for ‘Focus’. However, under cross examination the manager accepted that the claimant’s focus on trademarks was good, and this made up the lion’s share of her work. The claimant was selected for redundancy and was dismissed.
The claimant claimed that she was working in a culture of discrimination following her return from maternity leave and that her managers regarded her as underperforming, not being committed to her work, and/or not being focused because she was a woman.
The ET found in favour of the claimant and found that her dismissal was due to direct sex discrimination. It also found that she was treated less favourably than a comparable full-time employee, contrary to regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000; and that British Gas was also in breach of equal pay legislation.
The ET made a number of findings about the conduct of British Gas, namely:
- The employer’s policy on capping performance reviews for staff who had not worked a full year was discriminatory in relation to the protected characteristics of pregnancy/maternity and sex;
- The claim in respect of equal pay as between the claimant and her male colleague was well-founded because British Gas was not able to show that the pay difference was due to some material factor, other than her sex; and
- Emails from British Gas between the claimant’s line management stating ‘are you going to speak to her this week about not dropping everything when she leaves on Weds’ and ‘I’ve also told her that the work doesn’t stop at 4pm on a Wednesday’ allowed the ET to infer that the claimant’s personal circumstances as a mother of young children was unconsciously being held against her.
What are the lessons to be learned by employers?
There are numerous lessons for employers in this judgment, as it reads like a guide on what not to do. Managers should not fall into the trap of simply assuming that because a woman is a mother, or works part time, that she is less focused or in some way less committed to her role. This bias, whether conscious or unconscious can, as in this case, manifest itself in direct discrimination in breach of the Equality Act.
Equal Pay was also a feature in this case, and whilst the employer attempted to justify the male employee receiving a higher salary on the grounds of ‘market factors’ there was a real lack of evidence to back this up. The lesson to be learned here is that if employees of different sexes are paid differently to perform the same role, in order to defend a claim, employers need to have solid, objective reasoning to justify any pay differential.