Top Ten Lessons In Dismissal And Discrimination To Date In 2011

1. Only treat those on maternity leave more favourably where it is proportionate to do so

   In Eversheds Legal Services Ltd v De Belin, Mr de Belin was put at risk of redundancy along with his colleague, Ms Reinholz. As part of the scoring criteria, Eversheds awarded points for "lock-up", which is the time taken by the solicitors to receive fees for work completed for a client. This was to be calculated over the previous 12 month period. As Ms Reinholz was on maternity leave at that time, it was not possible to calculate her lock-up and so she was awarded the highest possible score of 2. Mr de Belin however, only achieved 0.5. As a result, his overall score was 0.5 less than Ms Reinholz and he was selected for redundancy. His claims of unfair dismissal and sex discrimination were upheld on appeal by Eversheds to the Employment Appeal Tribunal ("EAT"). Although Eversheds had awarded the additional points in order to protect Ms Reinholz from suffering disadvantage as a result of her maternity leave, it had disproportionately discriminated against Mr de Belin as there were other less discriminatory ways of removing the disadvantage. In particular, the lockup rate of both candidates could have been calculated as at the date Ms Reinholz was last at work rather than during the period of her maternity leave, a suggestion Mr de Belin had in fact put forward. Conflicting duties to employees are often difficult to resolve. Before affording more favourable treatment to one employee over the other, all alternative options should be considered and less disproportionate and discriminatory options taken where possible.

   (Eversheds Legal Services Ltd v De Belin UKEAT/0352/10)

2. Employers can be subjective when selecting the most suitable candidate for an alternative position in a redundancy situation

   During a fair redundancy procedure, employers are obliged to consider whether there are any suitable alternative roles for any of their potentially redundant employees. Where there is an alternative role and more than one potentially suitable candidate, the EAT in Morgan v The Welsh Rugby Union, has held that, provided the assessment used is fair and reasonable, the employer is entitled to apply its subjective judgment to decide which candidate is most suitable for the position. The obligation to use objective criteria when selecting employees from an at-risk pool for redundancy did not apply to the question of alternative employment and employers, by necessity, will have to carry out some form of assessment of candidates' ability to carry out the new role, particularly where the new role involves a promotion. In the case at hand, Mr Morgan complained that he had been unfairly dismissed because a new role was awarded to another candidate who was less qualified and had less experience than him and than the job specification required and because the interviews had not followed the format set out beforehand. The EAT dismissed his claim, however, holding that the Rugby Club had acted fairly and reasonably in deciding that the job description and interview format did not have to be strictly followed. Both candidates had been considered capable but the other candidate had convinced the panel that he was the best person for the job.

   (Morgan v The Welsh Rugby Union UKEAT/0314/10)

3. Have clear contractual terms to avoid dispute

   In Locke v Candy and Candy Ltd, Mr Locke was due to receive a guaranteed bonus of £160,000 on the first anniversary of his employment. Ten days before this date, however, he was dismissed with immediate effect and given a payment of salary in lieu of notice. He claimed that as the payment in lieu of notice provision (PILON) in his contract did not expressly specify that the PILON would be for salary only, he was entitled to receive all salary and benefits that would have been payable had he been allowed to work his full notice period, including the £160,000 bonus. The Court of Appeal disagreed. The contract had to be read as a whole and the PILON interpreted in accordance with its other terms. Although the provisions of the PILON were unhelpful, the bonus provisions made it clear that in order to receive the bonus Mr Locke had to be employed when it was due. As his employer had terminated the employment relationship lawfully by exercising its right under the PILON, Mr Locke was not employed when it was due and so was not entitled to the bonus payment. Although the employer was saved in this instance by the bonus provisions, the dispute could...