Veitch Penny LLP - Exeter | Crediton, Devon

Case

B v A
Employment Appeal Tribunal (EAT) - 9 January 2007

Issues

(1) Sex Discrimination
(2) Unfair Dismissal
(3) Summary Dismissal

Facts

B was a Solicitor within a small practice. He employed A as a Secretary/Receptionist. She was subsequently promoted to his Personal Assistant. They commenced a relationship and B supported her financially, paying for her to undertake studies at college and university.

Unbeknown to B, A subsequently entered into a “regular association” with a man called Mustafa at the university she was attending. She was still working for B and their relationship continued. However, on one day, B saw A walking with Mustafa. She was dismissed later the same day.

A brought proceedings in the Employment Tribunal complaining of unfair dismissal and sex discrimination.

At first instance, the Employment Tribunal found that she had been unfairly dismissed. The reason for her dismissal was that B was “driven by jealously or the discovery of [A’s] relationship with Mustafa”. She had been dismissed without notice and clearly not for any reason which could be recognised as potentially fair.

The Tribunal also found that she had been subject to sex discrimination. It found that the dismissal would not have occurred but for the fact that she was a woman.

B appealed against the sex discrimination finding but did not appeal against the finding of unfair dismissal. In his appeal, B alleged that the Tribunal had incorrectly applied “but for” rather than determining whether her dismissal was “by reason of” her sex. He also argued that the Tribunal had not constructed an appropriate comparator as they should have done and had given inadequate reasons for their decision.

Decision

EAT allowed the appeal. It found the Tribunal had been wrong to make a finding of sex discrimination. It had reviewed Section 1 of the Sex Discrimination Act and the relevant authorities. The question to be asked was why the employee had received a less favourable treatment at issue. Was it on the grounds of sex or some other reason? The “but for” test was not to be applied as the correct test was to apply a comparator. In this case, it appeared to the EAT that the reason in B’s mind at the time of the dismissal was not because she was a woman. It had occurred because of the relationship breakdown. In this particular case, the Tribunal would have had to construct an appropriate hypothetical comparator, namely a homosexual male employer and a homosexual male employee. On the evidence presented, such an employee would have received exactly the same treatment as A because it arose when her apparent infidelity was discovered.

Comments

This Judgment clarifies the test to be applied when determining whether discrimination on the grounds of sex has occurred, and is a useful reminder that employers should endeavour to act objectively and not emotionally when dealing with complex employment relationships.

Rachel Billen - Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.