Veitch Penny LLP - Exeter | Crediton, Devon

Case

Brumfitt v Minstry of Defence
Employment Appeal Tribunal - (27/07/04)

Issues

(1) Employment
(2) Sex discrimination
(3) Sex Discrimination Act 1975

Facts

Ms Brumfitt served in the Royal Air Force from January 1990 to May 2003. She attended a training course during which a male supervisor made a substantial number of obscene and offensive remarks. Comments were directed at both men and women attending the course.

Ms Brumfitt lodged a grievance with her employer. She felt that their investigation was unsatisfactory and made a complaint of sex discrimination to the Employment Tribunal.

At first instance, the tribunal made a finding that the remarks at the training course were not discriminatory to her on grounds of her sex. Ms Brumfitt appealed the decision, arguing that women in general were more likely to be offended than men.

Decision

The Employment Appeal Tribunal (EAT) held that she had not been subject to less favourable treatment, because both women and men attending the course, and both were on the receiving end of the treatment.

The Employment Tribunal had to consider:

(a) whether the claimant had been less favourably treated than a comparator, and
(b) had she been so treated on the grounds of her sex.

The EAT recognised that Ms Brumfitt had been badly treated, but found that this was not on grounds of her sex. It was because she had been required to attend the court. The supervisor had not singled her out because he had been insensitive to all, irrespective of gender. According to Judge Birtles “The fact that a man uses offensive words of a sexual nature in conversation with a woman does not constitute discrimination unless it can be shown or inferred that this was less favourable treatment than the man would have meted out to another man in a comparable situation”

Comments

This case has adopted a far more restrictive approach that the one taken in Moonsar –v- Fiveways Express Transport Ltd (reported in this update on 6th January 2005). What the analysis fails to do is recognise that identical treatment of women and men can amount to less favourable treatment of women if it is regarded differently by a woman than a man. At present it is difficult to reconcile the two cases, but it is hoped that some clarification will be provided by the new rules on sexual harassment, to be implemented by October 2005.