Rosemary Connolly and Jenine McCourt, Partners at Rosemary Connolly Solicitors, Warrenpoint and Belfast write regular emails on GB case law that they think will interest employment lawyers and HR professionals. Sometimes they will discuss the importance of cases that we have already reported on via or weekly review emails. Other times they will refer you to entirely new cases that you might not have seen before. Highlighted on this occasion are:

1. Eversheds Legal Services Ltd v Mr. J. De Belin [2011] UKEAT (sex discrimination in redundancy selection criteria)
2. Parmer v East Leicester Medical Practice [2011] UKEAT (victimisation)
3. Ezsias v North Flamorgan NHS Trust [2011] UKEAT (disciplinary procedures)
4. The Audit Commission v Haq [2011] UKEAT (equal pay)
5. Foster v Bob Groundwork [2011] UKEAT (estoppel)

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1. Eversheds Legal Services Ltd –and- Mr. J. De Belin

SEX DISCRIMINATION - Favouring woman on maternity leave in redundancy scoring was sex discrimination against male competitor

The male claimant worked within a firm of solicitors as one of two associates in their Real Estate Investor team. Both associates were placed in a redundancy pool. One criteria used in the redundancy selection was the average length of time between taking on a piece of work and receiving payment. As the female comparator was absent on maternity leave an actual score was unavailable and she was given a notional maximum score. It was general policy in redundancies to award a maximum score.

The claimant was selected for redundancy but, had the comparator not been given this maximum score, the scores would have been level or she would have been selected for redundancy.

The employer argued that their approach was required by law in order to see that the female solicitor did not lose out by her maternity absence and thus to avoid the risk of a sex discrimination claim from her.

HELD: The EAT noted that the protection of the special position of employees who are pregnant or on maternity leave may sometimes require them to be accorded treatment which is more favourable than that accorded to their colleagues (other women as well as men) as acknowledged in the Pregnant Workers Directive, however this cannot extend to favouring pregnant employees or those on maternity leave beyond what is reasonably necessary to compensate them for the disadvantages occasioned by their condition.

In this instance the different scoring method constituted unlawful sex discrimination and the Claimant had been unfairly dismissed, it was not reasonably necessary to award a notional score as there were more proportionate means to ensure she did not lose out by her maternity absence. The most satisfactory alternative would have been to measure this criterion of both the candidates for redundancy as at the last date that the female comparator was at work.

In instances where an employer faces a potential claim whatever he/she chooses to do, the proportionality principle seems to strike the right balance. A disproportionate advantage given to a pregnant employee cannot have a direct and unfair corresponding disadvantage to the Claimant.
http://www.bailii.org/uk/cases/UKEAT/2011/0352_10_0604.html

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2 . Parmer v East Leicester Medical Practice UKEAT/0490/10/JOJ

VICTIMISATION

The Claimant, who was a doctor, sought to bring victimisation proceedings against his employer, a GP practice, based on what he asserted were untruths in six witness statements served in his prior discrimination claim. His claim had been struck out on the ground that the statements attracted judicial proceedings immunity. This is the legal principle that a witness enjoys absolute immunity from any action brought on the basis that his or her evidence is false, malicious or even careless.

HELD ON APPEAL: His appeal was dismissed, the EAT confirmed that the principle applies to all kinds of discrimination by way of victimisation. There is not an exception for victimisation claims.

However it is still possible for a tribunal to award aggravated damages by way of misconduct in the manner a claim is defended. That tribunal will have had a feel for the aggravating material and its effect on the claimant.
http://www.bailii.org/uk/cases/UKEAT/2011/0490_10_0103.html

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3. Ezsias v North Flamorgan NHS Trust (EAT)

DISCIPLINARY PROCEDURES

The claimant was a Consultant Surgeon who claimed he had been automatically unfairly dismissed for making protected disclosures (whistle blowing). In fact it was held that he had been dismissed because of the breakdown of working relationships between himself and his colleagues (irrespective of whether he had been responsible for, or had contributed to, that breakdown).

The disciplinary procedures did not have to be invoked as he had not had action taken against him because of his conduct, rather he was dismissed for ‘some other substantial reason’, namely that his conduct had led to a breakdown in trust and confidence.
http://www.bailii.org/uk/cases/UKEAT/2011/0399_09_1803.html

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4. The Audit Commission v Haq (EAT)

EQUAL PAY

Within the Commission two roles had been amalgamated into a new role. A pay protection policy was put in place. The affected employees would retain their existing points that they held on the relevant pay scale. Following the merging of the two roles, it transpired that the two highest paid salaries were paid to the only two males within the new group of employees carrying out this new role.

This pay protection policy was found to be not indirectly discriminatory. Protecting the pay of employees in restructuring a firm is a legitimate aim, as long as it does not incorporate past discrimination. Different rates of pay had been paid prior to the merger of the roles for a reason that had nothing to do with gender.
http://www.bailii.org/uk/cases/UKEAT/2011/0123_10_1803.html

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5. Foster v Bob Groundwork [2011] UKEAT 0382_10_1703

ESTOPPEL

The Appellant in this instance was a 78 year old carpenter. He had submitted a claim alleging he had been laid off without pay. Essentially this was a claim for ‘lay off’ and it was held he was not dismissed by reason of redundancy.

He was consequently rehired, and dismissed on grounds of retirement. He then submitted a new ET1 claim claiming different types of unfair dismissal. This second claim for unfair dismissal was not struck out under the “res judicata” doctrine which creates an estoppel barring multiple claims from the same cause of action, the reason being that the first claim for redundancy pay was not a necessary ingredient of the unfair dismissal complaint.

In any event the Claimant had submitted his first claim prematurely meaning that the tribunal did not have jurisdiction to deal with redundancy at that stage.
http://www.bailii.org/uk/cases/UKEAT/2011/0382_10_1703.html

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Legal-Island would like to thank Jenine McCourt, who provided the main content of this email. Jenine is a partner in Rosemary Connolly Solicitors with offices in Warrenpoint and Belfast. Jenine works exclusively in employment law and can be contacted on 028 4175 3121 or 028 9066 0823.
http://www.solicitorsni.net/default.asp

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Legal-Island
19 April 2011

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