A tribunal recently upheld a sex discrimination claim placed by a male who successfully argued that inflating the score of a female colleague who was on maternity leave during a redundancy exercise was discriminatory and led to an unfair dismissal.

The Claimant (De Belin) was placed in a ‘pool’ for redundancy with one colleague, a female who was on maternity leave.  The Employer decided to use a number of criteria in order to select the employee who would eventually be made redundant.

Under Section 2 (2) of the Sex Discrimination Act (SDA), those on maternity leave are entitled to preferential treatment in relation to suitable alternative vacancies during a redundancy exercise.  There were no alternative vacancies at the time of the exercise, but the employer still relied on the ‘special treatment’ element of the SDA.

The employer was mindful that one of the criteria (performance) would place the female at a disadvantage since she was not at work, and therefore unable to demonstrate her performance levels during the reference period.  Therefore the employer took the decision to allocate the female the highest possible score.  In contrast, the De Belin was achieved the lowest possible score – ultimately resulting in his dismissal.

Evidence indicated that during the time preceding her maternity leave, the female was also achieving a level of performance that only merited the lowest score.  Had she been allocated this score, she would have been selected for redundancy instead of De Belin.

The Tribunal found that by artificially inflating the female workers score,  De Belin had been subjected to unfair treatment on the grounds of sex, and that his dismissal had been unfair. 

This clearly demonstrates that although women on maternity leave are entitled to preferential treatment, this should not be to the extent that her male colleagues are discriminated against.  It is likely that the tribunal’s decision was influenced by the employers failure to consider alternative methods of scoring.  For example, by changing the reference period for the scoring (to take into account performance before she went on maternity leave) the situation could have been avoided.

Please refer to De Belin v Evershed Legal Services Ltd ET/1804069/09 for further details.

Source:  Empire HR