In an economic climate where downsizing may be inevitable, this case highlights the care that must be taken with selecting who is to be ‘let go’. Osborne Clarke’s Jessica Corsi investigates
Topic: Redundancies and Indirect Sex Discries and Indirect Sex Discrimination
Who: Mrs K Whiffen –v- (1) Milham Ford Girls School (2) Oxfordshire County Council
Where: The Court of Appeal
Mrs Whiffen was employed part-time at the school as a modern languages teacher for five and a half years, during which time she was employed under a series of fixed term contracts from year to year.
In due course a redundancy situation arose and the school governors followed the County Council’s model redundancy policy which, as a first step, contemplated the non-renewal of temporary fixed term contracts. The policy stated that if redundancies were going to be necessary then those employed on fixed term contracts would be the first to go in order to prevent redundancies, regardless of the length of service of those employees or their expertise. The policy also stated that permanent contract holders had the right to expect greater security of employment than those employed on fixed term contracts. Thus all those employed on fixed term contracts were to be dismissed before an objective selection process was embarked upon in respect of the rest of the staff.
Mrs Whiffen’s contract was not renewed. She claimed that the requirement to have a permanent contract in order not to be selected first for redundancy indirectly discriminated against women. The Court of Appeal confirmed that this was the case and also stated that the school had failed to justify that requirement. What had to be justified was the condition that those on fixed term contracts could not avoid redundancy selection and there was no attempt by the employers to show why it was necessary that only permanent employees were committed to take part in the selection procedure to avoid redundancy.
Why this matters:
In an economic climate where employers focus more closely upon margins and “slimming down” becomes a necessity, this case is very important. It is good practice for employers to try to find alternative arrangements to compulsory redundancy by, for instance, inviting applications for voluntary redundancy. Some employers also, as in this case, prefer to put forward those who are employed on “temporary” contracts for compulsory redundancy first. This case now confirms that such a practice is almost certainly likely to constitute indirect sex discrimination as, statistically, more women than men are employed under such contracts. If that practice cannot be justified objectively then a cost cutting exercise could metamorphose into a large spending spree – to the benefit of the lawyers.