Employers must take care that lay-offs do not breach sex discrimination rules.
It’s an equal opportunities recession, and women are feeling the impact, especially those working in retail, hospitality and administration.
The current downturn has seen female redundancy rates increase by 2.3% from January to September 2008 – almost double the 1.2% rate for men, according to TUC statistics.
While men bear the lion’s share of redundancies, with 1.18m unemployed in December 2008 against 790,000 women, the current downturn is affecting women more than ever. These figures contrast to previous downturns, when male-dominated sectors, such as mining and manufacturing, were the worst affected by redundancies.
Disruptive
As a result of female advancement in the workplace, the past decade has brought with it a raft of new family-friendly legislation to improve employees’ rights, such as enhanced maternity rights, flexible working and parental leave. Many employers view these rights as a considerable expense and disruptive to the business operation.
So, taking into account some employers’ dislike of maternity leave and flexible working, women could suffer sex discrimination once again as a result of cost-cutting measures. Given that many employers still perceive women as the primary child carers, and as such the most likely to use their family-friendly rights, this could lead women to lose out on recruitment, and be the first out of the door when it’s time to reduce overheads.
Uncapped
An employee who believes they have been made redundant as a result of their gender can claim for sex discrimination. These damages are uncapped and could lead to an expensive payout for the employer. To establish direct discrimination, a tribunal must find that the employee has been treated less favourably than a male colleague, and that this treatment is on the grounds of her sex.
To establish indirect discrimination of an individual, a tribunal must find that an employer has applied a practice, provision or criterion to all employees, which puts women, specifically the claimant, at a disadvantage in comparison to men. For example, counting childcare absences when assessing attendance records for redundancy selection criteria may amount to indirect sex discrimination.
For employers making redundancies, it is essential that the correct steps be taken to avoid sex discrimination claims, which could cause serious financial stress in what is already a difficult time.
Communication
Communication with staff is key when making redundancies, and will ensure that employees don’t get a nasty surprise when they are let go. Employers must maintain a level of transparency and remain approachable, so employees understand the reasons for cutbacks, are aware of where redundancies will be made, and supported in any concerns they may have. This way, the process is less stressful for all concerned, and in treating employees fairly, consulting them and showing openness, they are more likely to accept the reasons for being made redundant and less likely to bring a discrimination claim.
Employers who plan to make redundancies should also have in place non-discriminatory selection criteria, which are referable to employment data. In turn, the management staff that are scoring these criteria should be given proper guidance and training. This will allow fair assessment of an employee’s value to the business, taking into account issues of gender, and discounting family-friendly benefits that the employee may have used or is entitled to. A detailed assessment and clear employee selection criteria will guarantee that redundancies are fair and avoid sex discrimination claims.
For employers making redundancies, openness and fairness are the values they must adopt and display.
Key points:
- Women are susceptible to sex discrimination when made redundant due to many employers’ dislike of family-friendly rights.
- An employer directly discriminates against a female employee if he treats her less favourably than a male employee and that the difference is on the grounds of her sex.
- An employer indirectly discriminates against a female employee if he applies a practice, provision or criterion to all employees, which puts women at a disadvantage in comparison to men.
- Non-discriminatory selection criteria for redundancies can help employers avoid sex discrimination claims.
Sarah Turner, partner, Turner Parkinson
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