Baby blues for employers

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Posted in:HR and Employment|April 21, 2011 | Join the mailing list

A solicitors’ firm was recently held liable for sex discrimination against a male lawyer for favouring a female lawyer on maternity leave in a redundancy scoring exercise, where both employees were included in the selection pool.

In this case the criteria applied for redundancy selection included allocating a score which measured the time between work being done and payment being received. The male employee scored lower than a female colleague on maternity leave who was given the maximum
notional score. As a result, the male employee scored lower overall, and was made redundant.

The Employment Appeal Tribunal upheld the Tribunal’s decision that the employer’s approach to scoring an employee on maternity leave in a redundancy selection exercise was not proportionate and went beyond what was reasonably necessary. It considered that there
were alternative ways of dealing with the situation without disproportionately disadvantaging the male employee, such as looking at the performance of both candidates when they were last at work. This would have enabled the female colleague to be scored on
a basis that reflected her performance unaffected by her maternity absence.

Alison Loveday commented: "This case is a reminder that employers should not assume that giving employees on maternity leave an inflated score will be the safest option for them, in an effort to reduce the risk of sex discrimination because of pregnancy. Employers
should assess the possible ways in which the unfairness of a maternity absence can be mitigated, rather than automatically favouring the female employee above others.

This applies not only in redundancy situations but in all employment situations when dealing with employees on maternity leave. Employers need to manage their decisions carefully and ensure that they strike a balance between the principle of equal treatment
and the special treatment to be afforded to pregnant women. This case also demonstrates that sometimes even solicitors get it wrong!"

If you require further advice in respect of an employee’s maternity and pregnancy rights and/or guidance on the redundancy process, please contact a member of the employment team on 0161 8339211 or by email:Alison Loveday: Nigel Crebbin: Claire Coutts: Sally Tomlinson:

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