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.
The male employee was assessed based upon his results, while the female employee received maximum marks because she had been absent on maternity leave. One of the selection criteria assessed the time taken to secure payment for each employee’s work. A male employee was found to have suffered discrimination when selected for redundancy in preference to a female employee on maternity leave. This potential pitfall is best illustrated by a case decided some years ago - Eversheds Legal Services Ltd v De Berlin. 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. Legally sanctioned rights of this nature must be respected. Additionally, an employee on maternity leave must be offered any suitable alternative vacancy that exists, taking priority over other employees facing redundancy.
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. Legislation supplements these general principles with special rules obliging employers to take specific steps to correct disadvantage. Taking into account disability absence (or for that matter maternity absence) in redundancy selection is likely to render the process discriminatory. An employer can only defend such criteria as a proportionate means of achieving a legitimate aim. 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. If an employee is selected for redundancy because of, for example, their race, then the decision will constitute direct discrimination.
#PREFERENTIAL TREATMENT AT WORK FREE#
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. 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.Įmployers must take particular care when handling redundancies because while seeking to avoid discrimination against one employee, it is easy inadvertently to discriminate against another.