Flowery, LeninGrad and others with an interest in Reg 10

[RibenaBerry]

Have been meaning to post about this for a while, but seeing the question on Which about Reg 10 was the nudge I needed.

Ok, it's only at Tribunal, but it looks like it's going to appeal (assuming that's not bluster). Might we get some useful guidance on the vexed question of 'to selection pool or not'. The Tribunal here didn't seem to think that there was anything inherently wrong about the women on mat leave being in the pool.

Ooh interesting. Neither party is saying the woman shouldn't have been in the selection pool altogether though are they? And Eversheds weren't offering the woman the job without competition, just giving her a higher score in one of the criteria, so putting her through a competitive selection process but giving her an advantage to try and skew it in her favour, so effectively fiddling the result.

Seems a bit of a bizarre thing to do to me tbh. Either don't put the woman through a competitive selection process at all, and make clear that it's because of Reg 10 (which would have led to some helpful case law omne way or another ), or put both through a fair selection process, making sure the only criteria assessed are those for which both candidates can be given a fair assessment and no false advantage given to either.

Sex discrimination is about not putting one sex at a disadvantage, not actively giving them an advantage. Just seems a very strange interpretation of the law really - it's not what SDA says, and it's not the specific advantage Reg 10 requires either.

Shall be making this face at DH for not showing me this earlier...

Flowery - I guess I'm interested that Eversheds don't seem to have run the argument "Oh, well, we may have weighted her scoring, but actually she should never have been in the pool because of Reg 10, so actually the male employee didn't lose out at all". - ie. argued it was a technical failing, but there should be no compensation. Maybe they felt that that would be too painful (as, no doubt, over the years they have themselves and have had clients pool women on maternity leave!). Nor did the tribunal raise it of their own volition (which I think they would have had the right to do. Disclaimer - not a barrister!)

I think Eversheds panicked to be honest. Drew up some criteria, realised it was hard to judge the woman and gave her the maximum score. It is hard to know what to do there (particularly if criteria are agreed with reps, so can't be varied for particular pools). Do you give the average score? Does that disadvantage the woman?

Didn't mean to get your DH in trouble. Sorry Mr Flowery!

Don't worry about DH. Soon as I mentioned an article had been linked on here from the Lawyer he knew which one it would be, so it had hit his radar but just fallen off again before he showed me! He's very good like that to be fair to him.

Yes, interesting neither Eversheds nor the tribunal (who yes you would think must surely be allowed to raise relevant points of law that have been missed/ignored by both sides in a case) raised Reg 10 as an issue implying neither felt it was relevant or, in Eversheds' case, helpful.

Based on my second-hand knowledge of law firms, it would be a difficult case to argue that there was any kind of 'vacancy' though - I imagine it would have been a case of 'we currently have x number of associates in the real estate team, and we only need y', so no restructuring and no changes to the job because law firms (for fee-earners anyway) aren't really like that. So arguing that Reg 10 applied may have been a tough one.

I agree Eversheds must have panicked a bit - realised their agreed criteria did not allow them to consider women on maternity leave fairly, and tried to overcompensate. I think the lesson here (so easily learned from afar!) must be to make sure all angles are considered when putting together criteria for redundancies. Considering the possibility that women may be on maternity leave when drawing the criteria up isn't rocket science really. Easy to be wise after the event though of course.