Employment and Equality experts, Jones Cassidy Jones, have agreed to write a quarterly report on equality law developments that will impact in Northern Ireland and beyond. Today's article has been written by Partner Joanne White and covers the following:

1. Redundancy and maternity (Eversheds Legal Services v De Belin)

2. Gap in protection from discrimination in recruitment agency arrangements (John Bohill v Police Service for NI)

3. Public sector equality duties and spending cuts (R (on the application of Rahman) v Birmingham City Council)

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1. Eversheds Legal Services v De Belin [2011] IRLR 448 - redundancy and maternity

This case was decided under the Sex Discrimination Act 1975 (the NI equivalent is the Sex Discrimination (NI) Order 1976) and highlights some of the difficulties that can arise in assessing employees under redundancy selection criteria when one of the employees in the pool is absent on maternity leave.

In this case the Employment Appeal Tribunal (EAT) confirmed that a male employee (B) was subject to direct sex discrimination when his employer inflated the score of a co-worker (A) on maternity leave in a redundancy selection process.

B was a solicitor at Eversheds and was at risk of redundancy. The other solicitor in the pool for selection was a fellow solicitor, A, who was on maternity leave at the time. One of the redundancy selection criteria was an assessment of the time taken by each solicitor between completing client work and having the firm’s fees paid, known as “lock-up” which was measured as at the 31st July 2008. As A was on maternity leave at this time and lock up could not be measured for her, she was awarded maximum score. B’s lock-up score was based on actual figures and was lower. Because of her lock-up score, A’s overall score was higher than B’s, and he was therefore selected for redundancy.

B brought claims of direct sex discrimination and unfair dismissal. Section 1(2) of the Sex Discrimination Act (Art 3(2) of the SDO) prohibits direct sex discrimination. B argued that giving A the maximum score for lock up amounted to more favourable treatment on grounds of her maternity leave and as maternity leave is gender specific, meant that she was treated more favourably on grounds of her sex with the implication that he was treated less favourably on grounds of his sex.

Section 2(1) of the SDA makes it clear that the protection against discrimination extends to men as well as women but this is subject to an important caveat under S2(2) namely that “no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth”. The equivalent NI provisions are Arts 4(1) and (2). Eversheds relied on s2(2) (Art 4(2)) to argue that awarding A the maximum score was an example of “special treatment” and was therefore not discriminatory.

The EAT upholds the decision to the Tribunal and finds in favour of B namely that he had been directly discriminated against. The focus was on whether the case fell within the scope of s2(2) exclusion. The EAT holds that s2(2) must be construed in accordance with the principle of proportionality stating that “special treatment” afforded to a woman in connection with pregnancy or childbirth refers “only to treatment accorded to a woman so far as it constitutes a proportionate means of achieving the legitimate aim of compensating her for the disadvantages occasioned by her pregnancy or her maternity leave.” It cannot go “beyond what is reasonably necessary” for that.

The EAT held that the employer should have assessed the lock up performance of both candidates for a period when A was at work. It may be that employers in conducting assessments for redundancy will in practice have to look at the most recent period when employees in the pool were actually in work although the application of this may not always be as straightforward as it appears.

It is somewhat ironic that by seeking to ensure it was not discriminating against A who was on maternity leave, Eversheds has been found to be in breach of the SDA in relation to B. It has been commented that the EAT's reasoning is not restricted to redundancy selection, but would appear to apply to any benefit afforded to women who are pregnant or on maternity leave.

The decisions of the EAT are regularly referred to in this jurisdiction and can be applied by our Tribunals and Courts. However employers should be mindful that the EAT’s decision is not binding on Tribunals and Courts in Northern Ireland and proceed with caution in giving a wide interpretation to the case. In particular, the EAT have applied a proportionality test when the legislation itself makes clear that “no account” is to be taken of special treatment in connection with pregnancy or maternity leave when deciding whether a man was discriminated against.
http://www.bailii.org/uk/cases/UKEAT/2011/0352_10_0604.html

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2. John Bohill v Police Service for NI [2011] NICA 2 – gap in protection from discrimination in recruitment agency arrangements

This case shows a gap in the protection afforded against discrimination in relation to certain types of agency arrangements which had previously been highlighted in the case of Muschett v HM Prison Service [2010] EWCA Civ 25.

In this case, B (a former member of the PSNI who had retired from the service) brought a claim of discrimination on grounds of religious belief and/or political opinion in relation to his failure to secure employment with the PSNI (the end user). B had registered with Grafton Recruitment Services (the agency) and his name had been sent to the PSNI on 13 different occasions but he was never recruited as a temporary worker. He issued proceedings against the agency and the PSNI.

B had been supplied by the agency with a document entitled “Contract for Services for Temporary Workers NI”. The contract stipulated that its terms did not give rise to a contract of employment between the agency and B. In addition it provided that no contract for services existed between assignments and that the temporary worker was engaged as a self employed worker.

The Fair Employment and Treatment (NI) Order 1998 as amended prohibits discrimination in employment and affords protection to applicants and employees (Art 19), contract workers (Art 20) and also covers discrimination by employment agencies (Art 22). Art 2 of the Order provides that ‘employment’ means employment under (a) a contract of service or apprenticeship; or (b) a contract personally to execute any work or labour.

When the Tribunal heard this case it stated:

“The Tribunal is satisfied that in the event of a successful assignment, the claimant would have had to enter into a contract for services for a temporary worker as a self employed worker. However, he has not even reached this stage. The Tribunal is therefore satisfied that the claimant cannot rely on Article 19, 20 or 22 of the Order so as to enable the Tribunal to have jurisdiction to hear his substantive claim, which is therefore dismissed.”

The Court of Appeal upheld the Tribunal’s decision and dismissed B’s appeal. The Court found there was an absence of any contract with either the agency and/or the PSNI with the implication that the Court had no jurisdiction to hear the case. Unless and until his name had been put forward by the agency and accepted by the PSNI, B would not have been in any contractual relationship with either the agency or the PSNI (the end user). In such circumstances, B was not a person who was seeking employment with the PSNI within the meaning of the Order.

The Court held that had B been selected as a temporary worker by the PSNI he would have signed a document constituting a contract for services between himself and the agency to the period during which those services were supplied to the PSNI. At no time would he have been employed under a contract of service either by the PSNI or by the agency.

The Court held that the Employment Equality Directive 2000/78/EC did not assist B because of his lack of contractual status and remarked that the forthcoming Agency Workers Regulations was essentially limited to providing equal treatment in basic employment conditions after 12 continuous weeks in the same role. Coghlin LJ commented that “the case does seem to illustrate how an agency arrangement may deprive potential employees of important protections against discrimination. Northern Ireland enjoys a well deserved reputation for the early development and quality of its anti-discrimination laws and this is an area that might well benefit from the attention of the section of the office of OFM/DFM concerned with legislative reform.”

Although the impact of the forthcoming Agency Regulations (due to be implemented in Northern Ireland on the 5th December 2011) may be limited it is important that in preparation for same employers establish effective and ongoing communication with its supplier of agency workers and discuss the potential identification of comparators to ensure that the agency is kept abreast of proposed changes to terms and conditions.
http://www.courtsni.gov.uk/en-GB/Judicial+Decisions/JanJune11/COG8036FINAL.htm

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3. R (on the application of Rahman) v Birmingham City Council [2011] EWHC 944 (Admin) – public sector equality duties and spending cuts

In this case a successful judicial review was brought by five claimants of advice agencies to challenge a decision by Birmingham City Council to axe a £1.4 million funding package for 13 voluntary organisations in the City which led to the threat of closure of those services. The case is one of an increasing number of challenges to central and local government spending cuts. The challenge was brought on the basis that in making its decision to withdraw funding the Council had failed to comply with the equality duties with regard to race and disability.

The High Court (England and Wales) found that the Council failed to have regard to the impact of the funding cuts on the disabled, the elderly and those from ethnic minority backgrounds. As there had been a failure to consult relevant parties it was therefore difficult for the Council to argue that it had all the necessary information to have “due regard” to the relevant issues. The Court made the following comments about the importance of these duties in the current financial climate:

“Even where the context of decision making is financial resources in a tight budget, that does not excuse compliance with the PSEDs [public sector equality duties] and indeed there is much to be said for the proposition that even in the straightened times the need for clear, well-informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater.”
http://www.bailii.org/ew/cases/EWHC/Admin/2011/944.html

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Legal-Island would like to thank Joanne White, Partner, Jones Cassidy Jones Solicitors, for the main content of this email.

Contact:

Email: JWhite@jcjsolicitors.co.uk
Telephone No: +44 (0)28 90642290: Fax No: +44 (0)28 90642297.
Address: 220 Ormeau Road, Belfast, BT7 2FY

Joanne's colleague, Beverley Jones, will be speaking at this year's equality law review on 6 October. Current 2011 'second season' events from Legal-Island are online:
http://bit.ly/nwvZIN

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Legal-Island
18 July 2011

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