In the case of B v A UKEAT/0450/06/RN the Employment Appeal Tribunal (“EAT”) upheld the Employment Tribunal’s ruling that the dismissal of a female employee by her male former lover (a solicitor) did not constitute sex discrimination.

The facts

B, a male, was the principal solicitor in a small law practice. A, a female, was employed as a secretary by B’s law firm on 1 November 2002. She was promoted to the position of B’s personal assistant in December 2002 and by the end of 2003 they were in a sexual relationship. By December 2004 A had started a relationship with another man (which B was unaware of) and her relationship with B was faltering. In February 2005 B witnessed A with the other man and dismissed her the same day.

A submitted claims for unfair dismissal, wrongful dismissal, and direct sex discrimination to the Employment Tribunal.

The decision of the Employment Tribunal

The Employment Tribunal found that the reason for B’s dismissal of A was jealousy and driven by the discovery of A’s relationship with the other man. The Tribunal found that A had been dismissed without any reason that could be regarded as potentially fair and that a fair process had not been followed. The Tribunal therefore found that A had been unfairly dismissed.

The Employment Tribunal also found that B had discriminated against A on the grounds of her gender, finding that her dismissal would not have occurred but for the fact that she was a woman.

B appealed the Employment Tribunal’s findings on sex discrimination.

The decision of the Employment Appeal Tribunal

The EAT upheld B’s dismissal, finding that the Employment Tribunal had applied the wrong legal test: the EAT held that the crucial and first question a Tribunal should ask was “why was it that A received the less favourable treatment in question?” and that the clear answer here was that her dismissal was not related to her gender, but because B was jealous of her relationship with a third party.

The EAT further held that an incorrect comparator had been used by the Tribunal and that the correct comparator would have been a homosexual male employer and a homosexual male employee. The EAT held that, should the Tribunal have applied the correct comparator test, on the Tribunal’s findings a homosexual employee would have received exactly the same treatment; he would have been dismissed when B learned of the other relationship.

Our comment

It is clear from this ruling, and a number of previous rulings, that the dismissal of a woman (or a man) because of a breakdown in the sexual relationship that they were having with a colleague will not usually constitute sex discrimination (as it is generally difficult to argue that a homosexual male employee would have been dismissed in the same circumstances). Depending on the circumstances, however, a woman may be able to make a claim for sexual harassment (section 26(2) Equality Act 2010) or gender-related harassment (section 26(1) Equality Act 2010) instead.

The judgment on B v A UKEAT/0450/06/RN can be found in the link.

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