To B or not to B

B v A (2007, IRLR 576)

The Sex Discrimination Act 1975 states that it is sex discrimination to treat a woman less favourably than they would treat a man in similar circumstances.

In B v A (2007, IRLR 576), the Employment Appeal Tribunal (EAT) said that the crucial question for tribunals to ask was whether the dismissal was on the grounds of sex, or for some other reason.

Basic facts

A started work for B in his solicitor’s practice in November 2002. By 2003, they had commenced a consensual relationship. B was considerably older than A and supported her financially. In particular, he paid for her to undertake college and university studies in addition to working in his office.

By December 2004, A had started a “regular association” with a young man called Mustafa at the university. She was, however, still working for A and still having a relationship with him, although it was in decline. On 4 February 2005, she went to his office and expressed her affection for him, but on 6 February, B saw her with Mustafa and dismissed her the same day.

She claimed unfair dismissal and sex discrimination.

Tribunal decision

The tribunal found as a fact that the reason for A’s dismissal was because B was “driven by jealousy or the discovery of the claimant's relationship with Mustafa”. She would not, therefore have been dismissed “but for” the fact that she was a woman. This was an overt act of less favourable treatment constituting direct sex discrimination.

It also found that A had been unfairly dismissed in that she was dismissed without notice and without any reason “which could be recognised as potentially fair”. Nor had B followed any statutory dismissal procedures. B did not appeal against that finding.

Arguments on appeal

B argued that the tribunal should have asked whether her dismissal was “by reason of” her sex, rather than apply a “but for” test. If it had done so, it would have concluded that the reason for her dismissal (B’s jealousy) had nothing to do with her gender.

Nor had the tribunal identified an appropriate comparator (such as a homosexual male employer and employee), which they should have done. In those circumstances, it was clear she would not have been treated less favourably than a man.

For her part, A argued that the “but for” formula was a necessary (although perhaps not sufficient) part of the correct test, showing that the tribunal had taken account of the need for a comparator. If there was a “right” comparator to use, it was a heterosexual man with whom A (as a woman) was having a relationship.

EAT decision

The EAT agreed with B, saying that A was dismissed “because of relationship breakdown, nothing more and nothing less than that. That being so, it was simply not open to the tribunal to find … that the claimant suffered discrimination on the grounds of sex.”

The “crucial and first” question that the tribunal should have asked was why she had been treated less favourably - was it on the grounds of sex or for some other reason? It should not have approached the issue by applying a “but for” test of causation.

It should also have identified a hypothetical comparator – a homosexual male employee and employer. Such an employee would have received exactly the same treatment, “namely, he would have suffered dismissal when his apparent infidelity was discovered driven by feelings of jealousy “

It therefore dismissed the appeal.