Female employee subjected to discriminatory dismissal because she had taken maternity leave (Hale v Dentons UKMEA Legal Services)

In the case of Hale v Dentons UKMEA Legal Services ET/2200450/2017 the Employment Tribunal held that Mrs Hale had been selected for redundancy because she was on maternity leave and that dismissing her would therefore cause the least disruption to her employer, an international law firm.

The facts in Hale v Dentons UKMEA Legal Services

Mrs Hale worked for Dentons UKMEA LLP (“Dentons”), a well-known large international law firm, from 8 December 2014 as a Recruitment Manager. She was initially employed on a fixed-term contract but her position was made permanent on 1 July 2015. The recruitment team was headed by Mrs Rowe at the relevant times.

Mrs Hale performed well in the course of her employment with Dentons, although there were a number of minor issues that arose (for example, a complaint from a recruitment agency and difficulties in communicating with Dentons’ construction team).

In February 3016 Mrs Hale informed Dentons that she was pregnant and that her baby was due in August.

Mrs Hale exceeded performance targets for the 2015/16 year and she was told by Mrs Rowe in May 2016 that the partners in the firm were highly supportive of her and felt that she was doing an excellent job.

Mrs Hale went on maternity leave on 24 July 2016. Over the course of 2016 the amount of work that Dentons was doing reduced – the managing partner of Dentons reduced the number of approved vacancies that it was recruiting for in November 2016, and it was also decided to reduce the number of employees in the human resources team. On 14 December 2016 Ms Peacock, Human Resources Director, met with the human resources leadership team and decided to reduce the headcount in the recruitment team. Mrs Hale was placed in a redundancy pool for selection along with two other ‘generalists’ in the recruitment team: Natalie Bush and Laura Cooper.

On 21 December 2016 there was a meeting of the human resources leadership team to consider who was to be made redundant. The redundancy selection criteria were applied to the employees in the pool over a period of 45 to 60 minutes, with each employee being discussed separately. Mrs Hale was selected for redundancy. No notes were made of this meeting.

On 4 January 2017 Mrs Hale met with Mrs Rowe at Dentons’ London office. In this meeting it was discussed that there would be a need to make redundancies in the recruitment team and it had been decided that Mrs Hale would provisionally be selected for redundancy. She was told that this was the beginning of the process and that a ‘first consultation meeting’ would take place on 8 January 2017. Mrs Hale was surprised by this and asserted that she was the most productive member of the team. There was a further meeting on 6 January 2017.

Mrs Hale subsequently challenged the redundancy scores that she had been provided with, asserting that she couldn’t believe that she had only been given a score of ‘satisfactory’ in respect of the work she had carried out.

On 26 January 2017 Dentons wrote to Mrs Hale to inform her that her employment was to be terminated by reason of redundancy. Mrs Hale appealed against the termination of her employment. In this appeal she complained, among other things, that she believed she had been made redundant because of her decision to go on maternity leave. Mrs Hale’s appeal was rejected.

Mrs Hale subsequently made Employment Tribunal claims for maternity discrimination (section 18 Equality Act 2010), unfair dismissal (section 98 Employment Rights Act 1996), and automatically unfair dismissal (section 103 Employment Rights Act 1996).

The decision of the Employment Tribunal in Hale v Dentons UKMEA Legal Services

The Employment Tribunal found in Mrs Hale’s favour in respect of her claims for unfair dismissal, automatically unfair dismissal, direct sex discrimination, and maternity discrimination.

Automatically unfair dismissal

The Employment Tribunal held that there were sufficient facts to infer that pregnancy and maternity discrimination may have taken place: 1) she was coincidentally dismissed upon her return from maternity leave; 2) the Tribunal took the view that there was not a fair and genuine selection process in which Mrs Hale was genuinely rated less highly than her colleagues; 3) that there was a failure to take notes of the meetings, and that there was the lack of process that one would normally expect from such redundancy exercises. The Tribunal decided that, on the balance of probabilities, Mrs Rowe and Ms Barnes made the conscious decision that the easiest option would be to make Mrs Hale redundant as she was away on maternity leave and this would cause the least disruption.

Unfair dismissal

The Tribunal found that Mrs Hale had been unfairly dismissed for the following reasons:

There was no consultation with Mrs Hale or her colleagues prior to the decision being made to make redundancies or on redundancy selection criteria
Inappropriate selection criteria were adopted in that they were entirely subjective
There was a lack of clear understanding of what the selection criteria were and how they were to be scored
The scoring was not applied fairly
The errors and failing were not corrected on appeal, with no rigorous investigation into the suitability of the criteria or scoring

Pregnancy and maternity discrimination

The Tribunal found that the following constituted unfavourable treatment because of Mrs Hale’s pregnancy or maternity leave:

A failure to consult regarding redundancy selection criteria and weightings prior to the redundancy selection process being carried out on 23 December 2016;
Pre-selection of Mrs Hale for dismissal and subsequently dismissing her purportedly for the reason of redundancy; and
That Mrs Hale’s challenge to the selection criteria and scores given to her was not taken seriously

The Tribunal therefore found that Mrs Hale’s dismissal constituted an act of pregnancy and maternity discrimination, and that she had also been subjected to detriments because of this protected characteristic.

The Tribunal ordered that a remedies hearing be held at a later date in order to determine what remedies were appropriate in the case.

Our solicitors’ view on Hale v Dentons UKMEA Legal Services

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must ensure that they carry out fair and transparent redundancy exercises and, further, that all relevant evidence of such is recorded and kept properly – this will not only help to ensure that a fair process is carried out but, equally, will assist the employer in defending any Employment Tribunal claim that may be made at a later date.”