In the May 2011 edition of our e-bulletin we reported on the case of Eversheds Legal Services v De Belin in which it was held that a male employee was directly discriminated against, on the grounds of sex, during a redundancy selection process.

As part of Evershed's selection criteria for redundancy they looked at the performance of employees during a certain period. During this period a colleague of De Belin's had been on maternity leave and Eversheds awarded this female employee the maximum score available in order to avoid any accusation of discrimination by her. The EAT decided that the Employment Tribunal were correct to decide that Eversheds had discriminated against Mr. De Belin and awarded £123,000. The EAT stated that instead of automatically giving the colleague on maternity leave the maximum score, while giving De Belin his actual score, the score of both candidates could have been measured as at the last date before De Belin's colleague went on maternity leave.

De Belin was awarded £123,000 in compensation by the EAT, making clear that any "special treatment" for those who are pregnant or on maternity leave is an exception to the usual rules and will only be permissible where proportionate.  

A recent European Court of Justice (the "ECJ") case has provided further guidance as to how to proceed in this sort of circumstance. In Riezniece v Zemkopības Ministrija the employer used selection criteria from a recent appraisal process, which the employee had not participated in owing to her absence. She was therefore ranked on the basis of an historical appraisal, and this led to her being selected for redundancy.

The ECJ held that where more women than men take parental leave, EU law prevents assessing those workers who are currently on parental leave on the basis of criteria less favourable than that applied to those who did not take parental leave. Instead any assessment used to determine which posts are to be abolished must encompass all workers likely to be concerned by the abolition of the post and must be based on criteria which are absolutely identical to those applying to workers in active service.

The judgment does though appear to indicate that using historical performance information is permitted provided that this does not disadvantage the employee who is absent due to their leave and provided that identical selection criteria is used for all potentially redundant employees.