Context is everything
Labour & European Law Review Weekly Issue 271 31 May 2012
The Sex Discrimination Act 1975 (now part of the Equality Act 2010) outlaws discrimination on the ground of pregnancy. In Warby v Wunda Group plc, the Employment Appeal Tribunal (EAT) said that it was not necessarily discriminatory for an employer to make a remark about a pregnancy once the context in which it had been made was taken into account.
Ms Warby’s union, the GMB, instructed Thompsons to act on her behalf.
Ms Warby started work for Wunda Group as a sales consultant on a basic wage plus commission. In January 2010, her pay was reduced shortly after she advised her employer that she was pregnant and she lodged a grievance.
This was followed by an “extremely acrimonious” grievance meeting in March 2010, at which Ms Warby said that her wages had been changed to her disadvantage because she was pregnant. Her manager denied this.
During the meeting he allegedly asked her why she had lied about having an abortion (Ms Warby had actually suffered a miscarriage just before she became pregnant again), an accusation that was apparently based on anomalies from a timeline that she had posted on Facebook.
Ms Warby claimed that this amounted to harassment on the ground of sex and/or pregnancy, contrary to section 4A of the Sex Discrimination Act 1975.
The Tribunal said that by accusing Ms Warby of lying about her pregnancy and miscarriage the company had created an environment that would satisfy the definition of harassment in the Sex Discrimination Act, provided it had been made on the grounds of her pregnancy.
But despite being “highly unimpressed” with the way in which the employer had handled things, it concluded that the reason that Mr Pugh had behaved as he did was because he was convinced that Ms Warby was lying, not because she was pregnant.
Although Mr Pugh’s behaviour was unreasonable, said the Tribunal, it did not amount to harassment on the grounds of her pregnancy.
The EAT said that, in general, Tribunals can conclude that an employer has discriminated against an employee in situations where they have used hostile language about a particular characteristic of that employee.
However, that is no by means inevitable as the words used by the employer have to be seen in context. The context here was a dispute about pay and a subsequent discussion about lying.
The conduct of which Ms Warby complained was “a complaint emphatically made about lying; it was not made to the Claimant because of her sex, it was not made to the Claimant because she was pregnant, and it was not made to the Claimant because she had had a miscarriage”.
Otherwise, said the EAT, any comment made by an employer that referred to miscarriage or pregnancy would be discriminatory for the simple reason that “it was not shared with any man”.
In other words, if the issue of miscarriage or pregnancy was raised in any fraught situation, as here, it would automatically amount to harassment or discrimination.
It therefore found against Ms Warby.
Thompsons are currently seeking permission to appeal in the Court of Appeal against the decision of the EAT. A hearing has been listed for 19 July 2012.