• Robert Spicer

Redundancy and sex discrimination

Sex Discrimination Dykes v Premier Risk Service LLP (2014) Eq Opp Rev 253:30, Leeds ET D was employed as a part-time health and safety expert. Her employing company carried out a restructuring exercise which involved the abolition of D’s job. She was given the opportunity to apply for a full-time post, but she was unable to apply because of childcare responsibilities. She was made redundant and complained of unfair dismissal and direct and indirect sex discrimination. The decision of the ET was as follows: 1. There was no direct discrimination. D was made redundant because she did not apply for the full-time post and not because she was a woman. 2. There was a provision, criterion practice (PCP) of requiring employees to work full-time. This put women at a disadvantage. 3. The employer’s reasons for deleting the part-time post were based on stereotypical and prejudiced assumptions about part-time workers. 4. In the absence of evidence of a need for a restructuring which resulted in the part-time post being deleted, the claim of indirect sex discrimination was upheld. Geller and Geller v Yeshurun Hebrew Congregation (2016) Morning Star, August 19, EAT Mr G was employed by YHC in 2011. A year later his wife started working for YHC on an ad hoc basis. YHC later suggested that the couple should be paid a joint salary. This was accepted. In 2013 it was decided that Mr G would be made redundant. Before he was informed of this, he told his employer that his wife was pregnant. Mrs G stated that she should also be considered for redundancy. Both were made redundant at the end of 2013. They lodged a number of claims in the employment tribunal including sex discrimination in that YHC had failed to treat Mrs G as an employee and had failed to pay her properly. The claims were dismissed on the basis that YHC had not treated Mrs G less favourably because of her sex but because it genuinely believed that she worked for them on an ad hoc basis. Mrs G appealed to the EAT. The matter was referred back to the tribunal for reconsideration. The tribunal had overlooked the important point that discrimination can be conscious or subconscious. The tribunal had failed to go through the two-stage burden of proof test in section 136 of the Equality Act 2010. Its treatment of the test had been rudimentary. There were primary facts from which discrimination could be inferred. At that stage the burden of proof would have shifted and it would have been for the employer to demonstrate a non-discriminatory reason for treatment. Haynes v Neon Digital (Document Solutions) Ltd and Others (2012) EqOppR224:30, Bury St Edmunds ET H was dismissed from her employment with N shortly after S, the managing director of N, was informed that she was pregnant. She was told that the reason for her dismissal was redundancy. She complained of unfair dismissal and sex discrimination. The ET found as follows: S was not a credible witness. His general attitude to female employees was sexist and he commented on the size of H’s breasts. S told her to “grow a pair of balls”. It was not a coincidence that H was put on notice of redundancy and dismissed shortly after S learned of her pregnancy. S’s comments and conduct amounted to direct sex discrimination and harassment. They created an environment which was intimidating, hostile, degrading, humiliating and offensive. H was awarded £11,000 for injury to feelings, based on the middle Vento band because there was a continuing course of conduct. S’s solicitors had sent a letter to H demanding £26,000 compensation to recover recruitment costs to replace another employee who had left the company. The tribunal stated that this was an act of intimidation and awarded £3000 aggravated damages. Indirect discrimination: selection criteria Whiffen v Milham Ford Girls’ School: W had been employed by M for five years on a series of fixed-term contracts. Her contract was not renewed when M applied a redundancy selection procedure. The procedure made temporary workers redundant first and then applied the selection procedure to permanent staff. W claimed indirect sex discrimination on the basis that 77 per cent of women teachers were permanent employees but 100 per cent of male teachers were. The ET found that a smaller number of women could meet the requirement of permanent employment necessary to come within the selection criteria. However, this policy was justified because the redundancy policy was gender-neutral. On appeal to the Court of Appeal, that court overturned this decision. Indirect discrimination is intended to go beyond a requirement which, on the face of it, is gender neutral, to consider the effect of that requirement in any particular case. Unjustified selection of a part-time worker for redundancy would now be a breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Case Examples: McFarland v Kincull Ltd (2016) Eq Opp Rev 273:23, Industrial Tribunal of Northern Ireland M was employed by K from 2004 until 2014 when she was dismissed for redundancy aged 47. Her dismissal followed discussions as to possible redundancy. A new post was created and M was excluded from applying because it was a requirement that candidates were educated to degree level. M complained of indirect age discrimination on the basis that people of her age were particularly disadvantaged because they were less likely to be educated to degree level than younger people. The complaint was upheld. Statistics showed people aged 45 to 54 were less likely to be graduates and were therefore put at a particular disadvantage. The criterion was not objectively justified because the employer could not show that it had carried out the required objective balance between discriminatory effect and the needs of the business. The legitimate aim for the new role could have been achieved, without the necessity for a degree, by other means such as experience. Rolls Royce plc v UNITE the Union: R entered into collective agreements with UNITE which stated that the selection criteria for redundancy would be achievement of objectives, self-motivation, expertise, versatility and personal contribution to a team. Each worker would also receive one point per year of continuous service. R took the view that the long service award amounted to unlawful age discrimination because it benefited older workers. UNITE argued that the award could be objectively justified and fulfilled a business need. The Court of Appeal found that the long service award was lawful provided that it reasonably appeared to R that the criterion fulfilled a business need. Further, even if the award was indirectly discriminatory, it could be objectively justified. The legitimate aim was the reward of loyalty and the overall desirability of achieving a stable workforce in the context of a fair redundancy selection process. Proportionality was achieved by the fact that length of service was only one of a substantial number of criteria.

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