The Employment Appeal Tribunal’s decision in Eversheds Legal Services Limited –v- De Belin issued earlier this month reinforces the ever-present scope in HR matters for going down in flames under the weight of the best possible motives. The perils of doing too much to avoid discrimination are less apparent, but just as real, as those of not doing enough.
While applying redundancy selection criteria to Mr De Belin and a female colleague then on maternity leave, the colleague was given a maximum score on one criterion to avoid any suggestion of less favourable treatment on maternity grounds. There was no consideration of whether that score was actually realistic in view, for example, of her past performance against that criterion. As a result of that maximum score the absent colleague was retained and Mr De Belin was made redundant. He claimed, and both the Employment Tribunal and the EAT agreed, that this was sex discrimination against him. While Eversheds were under a duty not to disadvantage the colleague on grounds of her maternity absence, that duty did not extend further than making such accommodation for her absence as was reasonably necessary for that purpose. Giving Mr De Belin an actual score and the comparator a notional maximum went too far.
The Employment Tribunals in the UK are littered with the shattered expectations of employers who thought that they had done the right thing, including some quite surprising names. In 1998 one employer issued instructions to its recruitment panel that “more must be done to ensure the reality of the statement that we are an equal opportunities employer”. A Mr Taylor’s application was passed over in favour of a woman’s. The Tribunal took the view that the encouragement to the recruiters went beyond what was necessary and had, no doubt with the best possible intentions, led them to recruit the woman because of her impact on the organisation’s gender statistics, and not because she was the better candidate. Mr Taylor won his discrimination claim. The name of the organisation? That paragon of industrial relations virtue, ACAS.
And the moral of the story is? Whether for recruitment or redundancy, there is no substitute for a gender-blind selection based on the objective merits of the candidate.