Getting Redundancy Selection Right

As you know, in order for a redundancy to be fair, not only must there be a real redundancy situation, but a fair redundancy selection procedure must be followed. In Pinewood Repro Ltd t/a County Print v Page this month the EAT has held that a properly conducted scoring exercise to select employees for redundancy will give an employee a fair and proper opportunity to understand it fully, and an Employment Tribunal should not normally interfere with the outcome of such an exercise.

Mr Page was put into a redundancy pool with two other employees. They were scored on a matrix and he came out bottom. He challenged the process on appeal, including querying whether those awarding the scores were the best people qualified to do so, and asking for a further explanation as to how the scores had been arrived at. He was not satisfied with the answers he received and claimed unfair dismissal.

The Tribunal held that the failure to provide an explanation of the scores and the "patently challengeable" matters relied on by the assessors to mark Mr Page meant that his dismissal was procedurally and substantively unfair. The EAT reiterated established principles for a "fair consultation" as involving giving employees a fair and proper opportunity to understand fully the matters about which it is being consulted, and to express their views on those subjects, with the employer considering those views properly and genuinely.

The EAT held that this did not necessarily mean that an employer must always provide an explanation of how an individual's score has been arrived at, but it might well include giving an employee sufficient information to enable him to challenge the scores given to him.  On the other hand, had Mr Page been able to challenge the scoring, had those comments been relayed back to  the markers, and had they then stuck by their original decision ‘it is difficult to conceive that the Tribunal would seek to interfere with that decision.’

Therefore when an employee challenges the criteria on which he or she has been selected for redundancy, it is wise to fully review the scoring and selection at the appeal stage.

   

James Carmody

RECULVER SOLICITORS     

         

The Equality Act and Compromise Agreements

You may recall that earlier this month we raised the fact that section 147(5) of the Equalities Act 2010 may mean that if a lawyer has represented an employee in a claim under the Act, he or she may not be able to advise on a compromise agreement settling that claim.

The Government Equalities Office has now issued guidance now saying that that s147 does not prevent the complainant’s legal representative from acting as the qualified adviser for the purpose of a compromise agreement. They say ‘It is not a proper reading of the section to suggest that the complainant's adviser is debarred from being the qualified adviser, because the section has to be read as a whole’ and that ‘It only prohibits a person who is acting for another party to the complaint or the compromise contract, or a person connected with that other party, from being an independent adviser.’

The GEO may believe the section to be clear, but it could have been drafted a lot better. The GEO’s guidance will be influential though when Tribunals come to interpret the provision.

   

James Carmody

RECULVER SOLICITORS     

Dismissed because your partner is pregnant

Hello and welcome to this week’s employment law news from Reculver Solicitors.

       

Dismissal because your partner is pregnant.

In Kulikaoskas v MacDuff Shellfish last week the EAT has held that a man who was dismissed could not claim ‘associative pregnancy discrimination’ because his partner was pregnant.

Mr Kulikaoskas and his partner had both been employed, and then they were both dismissed after a month. Mr Kulikaoskas claimed he was dismissed because he told a supervisor that he helped his partner lift heavy weights at work because she was pregnant.

You will recall the case of Coleman v Attridge Law in which a mother successfully relied on the principle of associative discrimination’ for a reason connected with her son’s disability. Mr Kulikaoskas tried to extend that principle to the Sex Discrimination Act. However the EAT distinguished the various EU directives, saying there was a very different body of law on the 'uniquely female state of pregnancy'.

The Equality Act 2010 does now cover associative discrimination under the Protected Characteristics of race, sex, disability, age, sexual orientation, religious belief or age. However legal commentators suggest it is not entirely clear whether it will be possible to claim pregnancy related associative discrimination under the new act.

  

James Carmody

RECULVER SOLICITORS     

          

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The Equality Act and Compromise Agreements

As has been widely reported in the press, them much vaunted Equality Act came into force on the 1st October, consolidating and extending discrimination law to cover the be ‘Protected Characteristics’ of Age, disability, marriage and civil partnership, sex, gender reassignment, pregnancy and maternity, sexual orientation, race, religion or belief.

One unexpected aspect of the Equality Act is section 147 (5) which states that for the purposes of finalising Compromise Agreements, the employee's "independent adviser" cannot be "(a) a person who is a party to the contract or the complaint.... (d) a person who is acting for a person within paragraph (a)...in relation to the contract or the complaint...". Some commentators are concerned that that this suggests that a solicitor negotiating terms of severance cannot also be the employee’s "independent adviser" to settle Equality Act claims in compromise agreements.

This seems both surprising and (apparently) un-intended. It could mean that a solicitor who negotiates a better deal on behalf of an employee, has to then send them off to an unconnected law firm to then finalise the Compromise Agreement.

In any event employers should overhaul their standard compromise agreements and advisers certificates in the light of the new Act. Do let us know if you would like any further advice on this or anything else.


James Carmody
RECULVER SOLICITORS

www.reculversolicitors.co.uk







Regulated by the Solicitors Regulation Authority: Firm 405070
Principal: James Carmody
Consultant: Carol Aylott
* Serviced Office. Meetings by Appointment Only