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Caution when criteria selects pregnant women for redundancy

Employers need to ensure that the selection criteria used in redundancies are clear and objective, to counter any allegation of unfair selection or discrimination which may arise. In a recent decision the Labour Court awarded €20,000 to a pregnant woman who was selected for redundancy.

The Court found that the matrix which had been used was unsatisfactory as it was “complex, opaque, subjective and open to manipulation in order to achieve a particular result”. As the employer could not clearly show that the selection of the employee was not on the grounds of the pregnancy the Court decided that the employer had discriminated against the employee on the grounds of gender and family status, and that a discriminatory dismissal had occurred.

The matrix involved a number of criteria of which five were relevant:

  • skills and experience in current role;
  • occupation and qualifications;
  • cooperativeness;
  • commitment and using own initiative; and 
  • future potential.

The employee, who was 7 months pregnant at the time, was informed that she was the person chosen for redundancy as the lowest scoring individual on the matrix. She was notified that she could appeal but she did not.

The employee referred a claim to the Equality Tribunal that she had been discriminated against on the grounds of gender and family status under the Equality Acts. The Equality Tribunal held that the employer discriminated against the employee and awarded her €30,000 in compensation. The employer then appealed the decision to the Labour Court which established, among other matters, that:

  • the basis for the matrix and its method of calculation was not clear; 
  • the rules around the selection matrix specified that the line manager was the appropriate person to complete the matrix. This did not happen in the case of the Finance Department as the Line Manager was included in the list of “at risk employees”; and
  • special protection against dismissal exists during pregnancy and, only in the most exceptional circumstances not connected with the pregnancy can you deviate from this.

However the Court did reduce the initial award of the Equality Tribunal from €30,000 to €20,000 as the employee had chosen not to appeal the decision to make her redundant. This case illustrates that where a genuine redundancy situation exists an employer must use selection criteria which are clear and predominantly objective in nature so as the employer is able to show that the selection was not based on pregnancy related grounds.