Sex discrimination and the City
28 May 2013 | By Katy Dowell
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Katie Tantum’s discrimination claim against Travers Smith highlights that such cases at top City firms are rare, but it is even rarer for accused firms to fight back
Discrimination claims against top City firms are rare: for one to be successful is rarer still. So when former Travers Smith trainee Katie Tantum launched a series of discrimination claims against the firm alleging that she failed to secure a permanent seat because she was pregnant, many thought her chances minimal.
On the 16th of May, the Central London Employment Tribunal upheld just one of Tantum’s claims, ruling that the firm did indeed concoct a story to prevent her from securing a permanent seat in the real estate practice. However, Tantum’s discrimination claims regarding permanent jobs in the corporate and tax teams and a 12-month contract in litigation, as well as four unfair dismissal claims, were dismissed in their entirety.
Leigh Day partner Liz George, who represented Tantum, said of her client, “It takes courage and tremendous resilience to stand up to your employer, even more so when that employer is a leading City law firm and you are only just embarking on your legal career.”
Many would agree and it is the reason so few cases reach the court steps. While women remain under-represented across the City it remains an issue that many firms find difficult to force out into the open. Senior women are reluctant to talk about their early experiences of sexism (if they experienced any), while wannabe lawyers are timid about challenging their future employers when they come across it in the workplace.
Equally, when the prospect of a discrimination case raises its head, many firms would prefer to settle the case quickly and keep it out of the public eye. Costs may not be an issue but reputational damage is. Travers Smith has no regrets about fighting the claim because, managing partner Andrew Lilley says firmly, he believes it was worth fighting.
“Before we took the decision to defend the case, we reviewed all the evidence very thoroughly,” he told The Lawyer. “If we and our counsel had not been satisfied with the strength of our case, we would not have fought the claim. As it is, we successfully defended all but one of the claims.”
True the firm fought off all but one of the challenges, but in that one remaining matter - that of the real estate seat - the tribunal was unambiguous in its conclusions.
Head of real estate Julian Bass and his fellow partner Andrew King, the tribunal said, when deciding how many positions to fill were “prepared to discriminate because of pregnancy”.
It continued: “Mr Bass was aware of the pregnancy of the claimant when he contrived the reduction of the second post. We conclude that the reduction of the second post was a device to prevent the claimant from being offered the post of newly qualified solicitor in the real estate department.”
The ruling turns on an email sent by Bass late one Friday last May, coincidentally a year ago almost to the day (25 May). Earlier on that day, the tribunal said, King had spoken to real estate partner James Styles about their being two positions available. Styles had discussed it with the then head of commercial and competition Margaret Moore before lunch that day. (Moore has since retired from private practice.)An email had been sent to which real estate partner Anthony Judge responded reiterating that there were two positions available.
According to the tribunal that remained the case until after 21.53 that Friday evening when Bass sent an email to all real estate partners stating: “I have been talking to Andrew King and others about this over recent weeks. I have confirmed that we will take at least (M) but we will consider a second. This needs careful handling.”
The following morning another email was sent by Bass, it read: “I end up concluding that we should take one qualifier only. We are having a difficult year because our market is in the doldrums. As we stand now, I do not think it sensible or logical to add a second qualifier.” Partner Simon Rutner responded the following Monday morning (26 May 2012) to say that Bass had made the right call.
It is from this apparent overnight change of heart that the tribunal reached its conclusions, stating that there was no explanation as to what changed between Friday night and Saturday morning. The ruling stated: “We find that the email from Mr Bass on Saturday morning 26 May 2012 affecting to propose reconsideration of the matter of the number of posts available is a subterfuge.”
Furthermore, it said, Bass said the issue needed full buy-in from the practice but the reality was that he made the decision himself before meeting with the committee on the 26th of May.
Another email was sent following the meeting with Moore, King and Lilley, this time from Bass to Styles and Judge, seeking their endorsement for the reduction of the post. But, the tribunal said, by this time King had already told Tantum that there was only one permanent position, “No one put their hand up for you, Katie,” he had told her.
The tribunal stated: “We find that the communication from Mr Bass to Mr Styles makes no sense in asking whether Mr Styles had strong feelings or otherwise, or asking Mr Judge for his thoughts, as by the time of the emails on 29 May nothing either of them could say would make any difference at all.”
Travers said it would stand by the partners implicated by the judgment. “We take on board the tribunal’s comments, but we have worked alongside Julian and Andrew for many years, and our trust and confidence in them has not changed,” Lilley declared.
That said, the tribunal directed the firm to improve its diversity training and said the firm’s senior staff “should participate in discrimination training”, this, it added, should be monitored and documented.
Lilley said Travers is “utterly committed” to promoting diversity.
“Our rolling programme includes training for existing and new partners, and senior non-legal staff,” he explained. “We involve associates and trainees in developing our diversity plans and this will continue.”
The firm was already committed to this prior to the ruling and in the autumn it will be launching “Diversity Week”, a programme which is being put together by the firm’s diversity partner, Siân Keall.
On top of that there will be a training programme on unconscious bias in the workplace, which will be conducted by specialist consultants.
Bass and King, like all partners, will be expected to attend.
The tribunal also said that the firm should have formal documentation in place so there is a transparent process with feedback for deciding which trainees get positions.
Lilley responded, “We’ll continue to try to make the process as painless as we can by being open with our trainees about who is prepared or not prepared to offer them a place, and why. We also try hard to find them a place in another department, if an offer from their first choice doesn’t materialise.”
He pointed out that the firm has received praise in the past for its lean support structure and is reticence to instal non-lawyer bulk to the ranks. “We would add that our HR arrangements have usually been viewed as a strength of ours,” Lilley said. “It’s an unusual feature of this firm that partners undertake
all interviews and reviews of trainees and associates, not our HR department.”
It was as much a brave choice for Travers to fight Tantum’s case as it was for her to bring it. On the 5th of June the court will convene for a remedies hearing.
In the meantime Lilley says if he had the chance to rewind time the firm would still defend the claims. As for contemporaries that find themselves in a similar position, Lilley says, “Our advice is only to fight a claim when you are very confident in your defence, as we were. You have every right to defend yourself while accepting that litigation is never risk-free.”
Discrimination cases beyond Travers
Travers Smith isn’t alone in having to deal with discrimination claims by unhappy partners and employees.
Perhaps the most prolific case in recent years was the multi-million pound age discrimination claim launched by Freshfields Bruckhaus Deringer’s former insolvency partner Peter Bloxham.
In the summer of 2007 Bloxham, who was 54 when he retired from Freshfields’ equity, claimed three counts of direct and indirect discrimination. He alleged that a Freshfields reform programme had “forced” him to retire and that pension modification was just a guise for pushing out expensive older partners of the equity during a time of firmwide restructuring.
Out of the key claims Bloxham made against the firm, the tribunal found only one instance was potentially discriminatory - namely Freshfields’ transitional arrangements between the old, uncapped Schedule II pension scheme and its successor, Schedule IIA.
Despite plenty of sabre-rattling, the case failed to progress to the appeal courts and the case came to a close in November.
In May 2010, former Eversheds associate John de Belin - who was also in the real estate team - brought his own six-figure case against the firm. The lawyer was laid off by the firm in February 2009 amid nationwide redundancies.
He claimed he had been treated less favourably than an associate in his group who was on maternity leave during the firm’s consultation process.
The tribunal and subsequent Employment Appeal Tribunal agreed and Eversheds was told to pay up.