Male employee wins sex discrimination claim over "favoured"
woman on maternity leave
Employment Law & HR update 07/11/2011
A male employee who was made redundant has won his claim that he
was discriminated against in favour of a woman who was off work on
maternity leave and who retained her job.
In a case that will surprise many employers, the Employment
Appeal Tribunal ruled that the woman had received
disproportionately more favourable treatment in the redundancy
process.
What was the case about?
The male and female employees worked for a law firm in which
redundancies needed to be made. As part of the redundancy selection
process, the two employees were scored under various criteria, one
of which was the time it took between undertaking client work and
being paid for it.
Because the woman was on maternity leave, and so no current data
was available, the employer gave her the maximum score of 2 points
on this criterion. The male employee scored 0.5 points. The total
scored by the male employee on all criteria was 27 and the female
employee scored 27.5, which resulted in him being selected for
redundancy.
The male employee argued that it was only because the female
employee had been treated more favourably owing to being on
maternity leave that his score ended up lower than hers.
Why is the case surprising?
Employers making redundancies are often faced with the problem
of how to compare women on maternity leave with other employees,
because up-to-date performance data might not be available.
Employers will often err on the side of caution and award the woman
a maximum score in such cases, but the Employment Appeals Tribunal
has held that this may discriminate against men not on maternity
leave.
What are the implications for employers?
This case illustrates just how difficult it is for employers to
navigate redundancy exercises and stay on the right side of the
law. Redundancy selection criteria should be carefully drawn up and
employees should be objectively measured, and particular care
should be taken to avoid unlawful discrimination.
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