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Unfair application of selection criteria in redundancy

BY Donald MacKinnon
Employment Law & HR
BG Purple

Applying selection criteria fairly in a redundancy situation can sometimes be taxing and defeat even the most prepared of employers as the case of Eversheds v De Belin shows.

Eversheds are one of the UK’s premier law firms.  They were not immune to the economic downturn and had to dismiss a number of staff including the Claimant in this case.

The Claimant and one colleague were in a pool for redundancy and were each scored according to agreed criteria.  The colleague was on maternity leave, and in assessing her scores, the employer awarded her maximum notional scores in some categories for the period when she had been absent on maternity leave.  This was done on the basis that the implementation of any selection process must be done in a non discriminatory way so that it does not disadvantage those on maternity leave.

The EAT however found that the method that the employer had used in this case went too far and, while not disadvantaging the colleague on maternity leave, did most certainly disadvantage the Claimant.  Not only was this unfair but it also amounted to sex HR in relation to the (male) Claimant.   
The way that the employer had approached the scoring and given a benefit to one employee was disproportionate.  While the selection criteria could not work so as to disadvantage an employee on maternity leave, a much fairer method of scoring would have been to ignore for both candidates the period that one of them had been on maternity leave and instead concentrate on the periods when both had been at work.

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