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Redundancy policy: fixed termers first
A redundance policy under which fixed-term employees are dismissed first before the employers used a selection procedure to choose permanent employees for redundancy has found be unlawful indirect sex discrimination by the Court of Appeal in Whiffen v Milham Ford Girls School.
Indirect sex discrimination occurs when a condition or requirement, which on the face of it applies to all, but in practice disadvantages a larger portion of one particular sex.
Such indirect discrimination is unlawful if the employer cannot justify the offending condition or requirement. For example, a requirement that only job applicants over six feet tall are able to apply for a post, would indirectly discriminate against women applicants. Although the job would be open to everyone regardless of their sex, in practice women would be less likely to satisfy the condition, because on average women are shorter than men. Unless the employer could objectively justify such a condition, then it would amount to unlawful indirect sex discrimination.
In Whiffen, a teacher who had worked for five and a half years on a series of fixed-term contracts, found that her contract was not renewed when the school faced a redundancy situation. This was part of the council's redundancy procedure - temporary workers first and then a redundancy selection procedure applied for permanent staff.
Mrs Whiffen never reached the stage of having the selection criteria applied to her. She
claimed unlawful sex discrimination on the basis that 100% of male teachers were permanent, but only 77.7% of female teachers were. The Employment Tribunal found that a smaller proportion of women could meet the requirement (permanent employment) necessary in order to come within the selection criteria. However, it further found that the policy was justified because the employers needed to have a redundancy policy and this one was gender-neutral. The Court of Appeal said that the Tribunal's decision was flawed. It missed the point that indirect discrimination is intended to go beyond a requirement which is, on its face, gender neutral, to look at the effect of that requirement in any particular case. The Tribunal had looked at the need for redundancy policies and decided justification was shown by the common place nature of that policy. What they should have gone on to do was to assess the employer's need for that "fixed-termers first" policy, to meet their objectives. That had not been done.
This is an important decision for teachers and short-term contract workers, the majority of whom tend to be women. Indirect sex discrimination will still be an important tool even after the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations come into force, some time next year. The new Regulations (still in draft) broadly speaking will say that with regard to conditions of employment fixed-term workers should be treated no less favourably than permanent workers, unless the different treatment is objectively justified. Under the Regulations there will be no need to show adverse impact between the sexes. Different treatment of fixed-terms workers, in the absence of objective justification, will be unlawful regardless of the person's sex.