Mother of triplets dismissed due to direct sex discrimination, tribunal rules

Judge found it ‘irrational’ that her manager scored her the lowest rating for her ‘focus’ during the redundancy process

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A lawyer was discriminated against and unfairly dismissed after returning from maternity leave and being told she was not focusing on her work, a tribunal ruled. 

The Reading tribunal heard that, during a redundancy process, Mrs Gemma Long, who worked as a solicitor for British Gas Trading, had a performance assessment that was “stacked against” her as a working mother.

Judge Gumbiti-Zimuto said that Long was not scored “in good faith” and found that her complaints of sex discrimination and unfair dismissal were well founded and succeeded.

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Long was employed as an intellectual property (IP) counsel at British Gas Trading between January 2012 and 23 July 2019. She went on maternity leave on 29 May 2016 and returned on 11 September 2017. The tribunal heard that following this pregnancy she had triplets who were two-years old and a son with “significant additional needs”. 

When she returned to her workplace, she was contracted to work Monday to Wednesday, 8am to 4pm and shared the department’s workload with another solicitor. However, this second solicitor resigned in June 2018 and the tribunal heard Long then “started to feel pressure to work on her non-working days” from her line manager, Sarah Hartnell.

The tribunal saw evidence of this, including emails between Hartnell and Long’s other line manager, Vicky Wells in which Wells asked Hartnell: “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.” The tribunal said this characterisation of Long’s work was “unsustainable and unreasonable”.

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In Long’s 2018 performance review, the tribunal noted she was given a mix of positive and negative feedback. However, in an email on 6 March 2019, she was told she was being placed on a Performance Improvement Plan (PIP) due to her “Below Expectations” performance rating. Then, on 6 June, Long was told she was at risk of redundancy.

During the assessment process for redundancy, the tribunal noted Hartnell used Long’s 2017 performance rating when she should have used her 2016 rating, because Long’s maternity leave in 2017 meant she could not be assessed for the full year. 

In the scoring matrix, Hartnell also scored Long 1 out of 7 for ‘focus’, which denotes that the person being scored rarely demonstrates this capability or sometimes demonstrates the opposite. However, the tribunal said that the score was “irrational” given Hartnell had told the tribunal that Long’s focus was “good in respect of the lion’s share of her work”.

Wells informed Long that she was at risk of redundancy in a phone call. However, during the call, Wells did not give Long the opportunity to draw attention to anything that would help improve her outcome on the scoring matrix. The tribunal heard that Long felt the criterion of ‘focus’ was “stacked against [her] as a working mother”.

Long was dismissed in a letter on 12 July. She appealed the decision but it was unsuccessful. 

The tribunal concluded that Long’s dismissal was direct sex discrimination and that she had been treated less favourably than a comparable full time employee. Judge Gumbiti-Zimuto said: “These matters in our view also allow us to infer that [Long's] personal circumstances as a mother of young children was unconsciously being held against her.”

Long also made a complaint about equal pay which the tribunal said was well founded as British Gas did not show why her male colleague was paid £2,000 a year more than her. Her complaint of less favourable treatment on the grounds of part-time working also succeeded.

Commenting on the tribunal, Alan Lewis, partner at Constantine Law, said firms should avoid critically commenting on an employee because they worked part-time. “It is very important that employers have regular and up to date training of staff on diversity and equality so that points such as the above can be brought into educating employees as to what is expected of their behaviour and management approaches,” he explained. 

Lewis added that, regarding equal pay claims, if the employer is to rely upon a market forces defence to justify the difference in pay between a woman and her male comparator, they must have credible evidence to support that defence. 

“This might include salary surveys, reports by recruitment organisations,” he said. “Relying on a simple suggestion by an individual in the HR team that the company just has to pay more to secure the male individual into a role is simply not enough.”

Paul Holcroft, managing director at Croner, added that while redundancies are essential in some cases, claims can still arise if the process is not completed properly. “All aspects of the selection process must be equal to all employees,” he advised. “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 that the selection criterion should focus on objective scoring, which can easily be justified by reference to other documents, such as an employment contract or appraisal forms.

The parties have been directed to a remedy hearing.

People Management has contacted British Gas Trading and Long’s counsel for comment.