Black v Evelyn Drain – pregnant employee dismissed for redundancy wins tribunal claim

A hairdresser, Ms Black, who was dismissed for reason of redundancy after letting her employer know she was pregnant has been rewarded £7,500 by a tribunal as compensation for injury to feelings.

Ms Black began working for Pat Drain Barbers in October 2019 and became pregnant in 2020. Ms Drain, the employer, tried to terminate Ms Black’s employment but chose not to after Ms Black informed her of her employment rights. Ms Black then took maternity leave and as a result of the Covid-19 pandemic agreed to work reduced hours on her return. There was no request from Ms Drain that other staff members reduce their hours.

Ms Black discovered that she was pregnant again whilst on maternity leave and she advised her employer. On her first day back at work Ms Black was asked to stay behind and speak to Ms Drain. Ms Drain advised Ms Black that she was being paid off on redundancy grounds. Ms Black was informed she was being made redundant for economic reasons – the business was not as profitable following the pandemic. However, no redundancy selection process and no informal or formal consultation was followed. The claimant believed she had been dismissed because of her second pregnancy.

Following the termination of her employment, Ms Black had an epileptic fit and believed this was due to distress and upset. As a result, she contacted her doctor who increased her medication.

While expressing some sympathy for the respondent the tribunal found in Ms Black’s favour. According to the judge, the timing and conjunction of events, coupled with Ms Drain’s actions when Ms Black first became pregnant, as well as the lack of broader consultation were enough to create inferences of discrimination.

Learning for employers

This case highlights the importance of consulting and following a solid process in the selection for redundancy. Ensure you seek advice from your HR advisor at SSG to navigate your way through the following process.

1. Check whether contractual redundancy selection applies to the redundancy exercise.
2. Use a redundancy selection matrix to carry out a scoring exercise for each employee in the redundancy pool.
3. Ensure that, as far as possible, selection criteria are objective and measurable and not based on subjective opinion.
4. Consider what skills and experience are most relevant for the role and ensure that the criteria reflect the requirements of the job.
5. Consult with employees on the selection criteria and scoring method.
6. When assessing performance, and where possible, base scores on quantifiable factors such as sales figures or on recent appraisals and performance reviews.
7. Be careful when using absence levels as criteria – a failure to discount absences related to, for example, disability or maternity is likely to be discriminatory.
8. Do not rely on last in first out as the sole criterion for selection as this is likely to be indirectly discriminatory on the grounds of age and potentially sex.
9. Where possible ensure that scores are moderated by more than one person to guard against bias.
10. Make sure that employees identified as being at risk of redundancy are provided with their own score (as a minimum) and fully consulted on it prior to the final decision being made.

Source: People Management