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Equality means equality – redundancy and the pitfall of preferential treatment

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By Anthony Wilcox

The Equality Act 2010 prevents discrimination on the grounds of protected characteristics – age; disability; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

Employers must take particular care when handling redundancies because while seeking to avoid discrimination against one employee, it is easy inadvertently to discriminate against another.

Keeping redundancy selection free from discrimination is best achieved through the use of objective non-discriminatory criteria, usually focused upon the competencies required for the roles remaining.

  • If an employee is selected for redundancy because of, for example, their race, then the decision will constitute direct discrimination.

  • If for example, a female employee is selected because she has childcare responsibilities restricting her ability to work overtime, then this decision is likely to constitute indirect discrimination, because the employer is imposing a requirement placing women (who statistically speaking are predominantly the primary carers) with children at a particular disadvantage. An employer can only defend such criteria as a proportionate means of achieving a legitimate aim.

  • Taking into account disability absence (or for that matter maternity absence) in redundancy selection is likely to render the process discriminatory.

Legislation supplements these general principles with special rules obliging employers to take specific steps to correct disadvantage. For example, an employer must make reasonable adjustments to remove substantial disadvantage faced by disabled employees, which could mean adjusting a vacancy available for an employee facing redundancy to remove disability related difficulties, such as changing working hours or providing support to enable certain duties to be performed. Additionally, an employee on maternity leave must be offered any suitable alternative vacancy that exists, taking priority over other employees facing redundancy.

Legally sanctioned rights of this nature must be respected. However, in all other situations, employers should take care to ensure that while seeking to avoid discrimination, they do not go too far and favour an employee with a protected characteristic - that can also constitute discrimination, with those thereby disadvantaged able to claim.

This potential pitfall is best illustrated by a case decided some years ago - Eversheds Legal Services Ltd v De Berlin. A male employee was found to have suffered discrimination when selected for redundancy in preference to a female employee on maternity leave. One of the selection criteria assessed the time taken to secure payment for each employee’s work. The male employee was assessed based upon his results, while the female employee received maximum marks because she had been absent on maternity leave. The Court emphasised that special treatment designed to avoid discrimination must not favour an employee beyond that which is necessary to compensate for the disadvantage. By elevating the female employee too far, the employer committed an act capable of amounting to sex discrimination – the male employee suffered less favourable treatment due to his gender. The Court considered that the employer should have found a less discriminatory way of removing the maternity leave disadvantage, for example by measuring the performance of both employees at an earlier date when they were on an equal footing.

As this case shows, it is important to ensure that redundancy processes are conducted correctly, not only to avoid qualifying employees acquiring claims for unfair dismissal, but also to avoid discrimination; our employment team have the knowledge and experience to advise you, and will always be happy to help.

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