Redundancy scoring favouring employee on maternity leave confirmed as sex discrimination against male colleague

The EAT has agreed with the tribunal in Eversheds v De Belin that a male employee had been discriminated against when his employer gave a female colleague on maternity leave a notional maximum score in a matrix which resulted in him being selected for redundancy rather than her. The EAT held that although employees who are pregnant or on maternity leave sometimes need to be treated more favourably than their colleagues, this protection does not extend to favouring them beyond what is necessary to compensate them for disadvantages from their condition. Employers should ensure that scoring in these circumstances is done as far as possible on objective criteria which can actually be measured.

Surveillance film – don't jump to conclusions

Employers should ensure that if they intend to rely on surveillance film when dismissing an employee who is off sick, that they seek a professional medical opinion on what the film appears to show. In Pacey v Caterpillar Logistics the employer dismissed an employee who was absent on sick leave with a back injury for gross misconduct for falsely claiming sick pay when he was filmed walking, carrying shopping and cleaning his car. However, the tribunal criticised the employer for not seeking a medical opinion on whether what the employee was filmed doing was consistent with the reason for his absence and found the dismissal unfair.

Compromise agreements

The EAT has confirmed in McWilliam and others v Glasgow City Council that in order to be a valid compromise agreement, there is no need for the solicitors advising the individual employees to give advice on whether the settlement terms are a "good deal".

Is the claim in time?

The question of whether an individual has brought a claim in time has featured in a couple of recent decisions:

  • In Cullinane v Balfour Beatty the EAT held that when considering whether a claim was presented within a reasonable time after the time limit for unfair dismissal had expired, the tribunal should treat an unreasonable delay by the claimant's adviser as being the claimant's delay.
  • However, in John Lewis Partnership v Charman the EAT held it was reasonable for an unrepresented claimant to wait until the outcome of his internal appeal before asking about how to make his claim, by which time the three month time limit had passed. It found that the employee was "reasonably ignorant" of the time limit and it was not reasonably practicable for him to bring the claim in time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.