eversheds_dbEAT11
EAT SEX DISCRIMINATION – Direct
SEX DISCRIMINATION – Pregnancy and discrimination
SEX DISCRIMINATION – Other losses
UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Polkey deduction
Male claimant and female comparator absent on maternity leave in redundancy selection pool – On one criterion (‘lock up’) Claimant given low (actual) score but comparator given (notional) maximum score since because of her absence at the measurement date no actual score was available – Claimant selected, but if comparator had not been given the maximum score for lock up the scores would either have been level or she would have been selected – Tribunal holds that the different scoring method constituted unlawful sex discrimination and the Claimant had been unfairly dismissed – Claimant awarded compensation for over three years’ loss of earnings – Appeals on liability and remedy.
LIABILITY
Held, dismissing appeal, that:
(1) As regards sex discrimination, more favourable treatment of the comparator in order to compensate her for a disadvantage consequent on her absence on maternity leave would not constitute unlawful sex discrimination, if but only if the treatment was no more favourable than was reasonably necessary for that purpose – article 2.7 of the Equal Treatment Directive and section 2 (2) of the Sex Discrimination Act 1975 considered; but
(2) It was not reasonably necessary to accord the comparator a notional score on the lock up criterion because there were more proportionate means available of ensuring that she did not lose out in the redundancy exercise because of her maternity absence.
(3) As regards unfair dismissal, it was not reasonable in the circumstances for the employer to rely on its own failure to identify more proportionate means of protecting the comparator’s position.
REMEDY
(4) The Tribunal had wrongly refused to consider evidence that if the Claimant had not been dismissed he would have been at risk of dismissal in a further redundancy exercise in less than a year’s time – King v Eaton, Thornett v Scope and Software 2000 considered – Tribunals not to decline to undertake Polkey exercise merely because it involves ‘speculation’
Underhill P J
[2011] UKEAT 0352 – 10 – 0604
Bailii
England and Wales
Employment, Discrimination
Updated: 01 November 2021; Ref: scu.431879
