Spencer v Lehman Brothers (in administration) ET/3201700/20/09

Miss Spencer was employed by Lehman Brothers as a threat assessment director within corporate security. On 17 September 2008 she took a pre-arranged holiday prior to commencing maternity leave. On 15 September Lehman went into administration. The administrators asked the head of corporate security to recommend members of his team for redundancy. The head did not formally consult with any of his team but Miss Spencer was recommended for redundancy and was dismissed on 28 October 2008.

She submitted a grievance complaining the she had been disadvantaged by not being kept informed about the status of her role or of job opportunities because she was absent on maternity leave. Her grievance was rejected on the basis that the reason for her dismissal was the reduced need for her role after the administration. She lodged a complaint of unlawful discrimination.

The claims against Lehman were stayed due to the statutory moratorium on the legal process. However she argued that PWC and the administrators were liable on the basis that they knowingly aided Lehman’s unlawful discrimination and in doing so acted as the administrators’ agent. The tribunal dismissed her complaint. She received no less information about her status than her colleagues who were not absent on maternity leave. Her dismissal was not because of her maternity absence.

The tribunal also concluded that PWC was not the administrator of Lehman and there was no basis of any claim against it, even though the firm received the fees from the administrator. There were no facts known or apparent to the administrators from which a tribunal could infer that they knew that they were aiding an act of unlawful discrimination, had there been any unlawful discrimination by Lehman. It was perfectly legitimate and reasonable for the administrators to proceed on the basis that the Lehman managers involved in the redundancy selections were acting professionally, fairly and lawfully.

Key point: The case is a useful decision about the potential liabilities of administrators for discrimination claims on the basis of agency.