In the case of Martin v Lancehawk Ltd (t/a European Telecom Solutions) UKEAT/0525/03/2203 the Employment Appeal Tribunal (“EAT”) upheld the decision of the Employment Tribunal that the dismissal of a female employee by her male boss after a sexual relationship between them ended was not direct sex discrimination.
Alexandra Martin commenced employment with Lancehawk Limited in April 2001. In July 2001 Mrs Martin, who was married at the time to man named ‘Steve’, began an affair with Mr Lovering, managing director of Lancehawk Limited (“Lancehawk”) and in a relationship with a woman named Gillian. The fact of the affair was known by other members of staff at Lancehawk.
By October 2002 some problems with the affair were starting to emerge and on 18 October 2002 Mrs Martin resolved that she should tell her husband Steve about the affair. She did so and Steve was upset. On 21 October 2002 Mrs Martin had a conversation with a colleague, Mrs Crookes in the Lancehawk kitchen, and informed Mrs Crookes that she had told Steve of the affair and that he was coming to the workplace that day to confront her about it. Mrs Crookes relayed this information to Mr Lovering, and Mr Lovering was upset as Mrs Martin had previously assured him she was not going to tell Steve of the affair. The affair came to an end on 21 October 2002 and Mrs Martin was dismissed shortly after on allegations that her actions had caused a breakdown in the trust and confidence that had previously existed between the parties (there were some allegations made that Mrs Martin had searched Mr Lovering’s desk and that she had threatened to cause harm to the business).
Mrs Martin brought claims to the Employment Tribunal of unfair dismissal, wrongful dismissal, and direct sex discrimination.
The decision of the Employment Tribunal
The Employment Tribunal found that the reason for Mrs Martin’s dismissal was because Mr Lovering thought that Mrs Martin had lied to him and because of the contents of the conversation that she had had with Mrs Crookes, and not for any other reason. The Tribunal found that Mrs Martin’s claim for unfair dismissal succeeded, principally because there had been no investigation carried out into the allegations of misconduct put to Mrs Martin.
The Tribunal, however, dismissed Mrs Martin’s claim for direct sex discrimination as it found that she had not been treated less favourably because of her gender.
Mrs Martin appealed the Tribunal’s finding on sex discrimination.
The decision of the Employment Appeal Tribunal
The EAT rejected Mrs Martin’s appeal, holding that the Tribunal had properly applied the law on sex discrimination (under the Sex Discrimination Act 1975, at the time) as, principally, the correct comparator in the circumstances would have been a male employee with whom Mr Lovering had had a sexual relationship, and the Tribunal (nor the EAT) would have had any reason to believe that the male employee would have been treated more favourably in such circumstances. Equally, the EAT rejected Mrs Martin’s argument that the Tribunal should have applied a “but for” test (i.e. that, ‘but for’ the fact that Mrs Martin was a woman, she would not have been dismissed), holding that the correct test regarding causation was the ‘reason why’ an employee had been treated in a particular fashion.
Our comment on the case
This case is one of a number of cases (see our article earlier this week) that the EAT has had to rule on regarding the correct causation and comparator tests to be applied in cases of direct sex discrimination, and renders it difficult for employees to succeed with claims of direct sex discrimination if they have been dismissed because of the breakdown in a relationship with a colleague. However, depending on the circumstances the employee may be able to bring claims of sexual harassment, gender-related harassment and/or victimisation in the same circumstances.