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Equality: an inexact science

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Employers across Yorkshire continue to wrestle a sluggish economy which, despite early signs of recovery, continues to force them into the realm of redundancy.

But having embraced diversity and established a varied workforce of men and women from a variety of backgrounds, with families and disabilities, achieving equality in redundancy situations could prove difficult.

As it stands the law is unclear on how employers should approach the delicate situation of balancing the rights of employees protected under equality legislation. For example, it is not clear how an employer should go about assessing a disabled employee against a pregnant woman for redundancy. Although few would welcome the opportunity of making that decision in public, guidance from either Parliament or the courts is needed urgently.

The Equality Act 2010 offers people with a number of ‘characteristics’ such as sex, pregnancy and maternity special protection. It means that employers must not treat female employees less favourably than male employees if it can in any way be linked to their gender, pregnancy or maternity. In a redundancy situation it means exercising extra leniency towards female employees who are either pregnant or on maternity leave, and there is little a male colleague can do about it.

The courts have voiced their support for this approach while at the same time warning employers not to go too far in affording special treatment to expectant or new mums. See the dilemma? Exactly what does it mean to not go ‘too far’?

This concept was not long ago tested in court when a law firm found itself at the wrong end of a discrimination claim. In De Belin v Eversheds, the firm inflated the score of a female employee on maternity leave who was being assessed for redundancy. The intention was to remove any disadvantage she might have faced due to being off work. Mr De Belin was instead selected for redundancy as a result of her score being inflated. He sued the firm for sex discrimination and won. The court said that artificially inflating the woman’s score went too far, and was beyond what was ‘reasonably necessary’ to create a level playing field for the two employees.

It is therefore a delicate balance for any employer facing a redundancy situation to strike.

As for women, the Equality Act offers similar special protection for disabled employees. Employers must take ‘reasonably necessary’ steps to remove any workplace disadvantages for individuals who satisfy the Act’s definition of a disability – and that extends to redundancy situations. In practice it means disregarding any absence or performance issues which can be linked to an employee’s disability.

This may seem straightforward. Unfortunately it is far from it. As it stands there is no clear guidance available to employers faced with assessing several employees with protected characteristics against each other for redundancy selection purposes.

By law, no one protected characteristic takes precedence over another. But of course there are no rules without exceptions and so again it gets complicated. If a suitable alternative role becomes available during a redundancy consultation process, and one of the employees whose role is at risk of redundancy is a new mum on maternity leave, she is legally entitled to that role – irrespective of whether this could be disadvantageous to anyone else including a man with a disability.

Another example is where employers are obliged to make reasonable adjustments to remove any disadvantages posed to employees who are disabled for employment law purposes. Reasonable adjustments are likely to be required for a disabled employee whose role is placed at risk of redundancy. This could mean that the disabled employee is on the face of it treated more favourably than anyone else whose role is also at risk, irrespective of whether any of the others at risk have characteristics protected by the Equality Act.

As is so often the case when it comes to employment law, the best advice is to seek advice. Other than that, until either the courts or the government issues unequivocal guidance on the issue, best practice for employers remains to focus on each individual and try to do what is ‘reasonably necessary’ to remove any disadvantages that they might face due to a characteristic protected by law.

As it stands, the law of equality remains an inexact science.


 

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