A recent case in the Employment Appeal Tribunal (“EAT”) has highlighted that employers must take care when using selection criteria in a redundancy exercise, and be particularly conscious not to unfairly favour an employee on maternity leave in comparison to other employees.
The case (Eversheds Legal Services Ltd v Belin (2011)) involved a male employee, who had been made redundant, bringing a claim for unlawful sex discrimination. The employee was one of two employees in a team who were at risk of redundancy. In order to select which one of the two would be made redundant, the employer used an objective scoring system. At the time of scoring, the other team member was on maternity leave. The male employee was given a lower score than the other employee. This was because she had been automatically awarded a maximum score for performance because her actual performance could not be measured due to her absence on maternity leave. The male employee argued that this was unfair and constituted sex discrimination. In particular he argued that there were alternative approaches to the scoring of performance. The Employment Tribunal agreed and awarded compensation to be paid to the male employee. The employer then appealed against this decision claiming that they had to favour the employee on maternity as this is part of their a legal obligations.
The EAT said that the legal obligations do not require employers to go beyond what is reasonably necessary to compensate a pregnant employee or employee on maternity leave for the disadvantages occasioned by their condition. In this case they agreed that the means adopted by the employer to resolve the problem was not proportionate and as a result the male employee was unfairly disadvantaged.
The message of this case is that an employer must be conscious to balance their legal obligations to employees who are pregnant or on maternity leave against the need to act proportionately and fairly to all employees so as to avoid discrimination claims.