Warby v Wunda Group plc UKEAT/0434/11/CEA
In this case an employee and her manager had an acrimonious dispute about what had been agreed regarding the employee’s wages. During the dispute both became convinced that the other was lying about what had previously been agreed.
In one meeting the manager brought up the fact of the employee’s pregnancy and asked her why she had lied about having a miscarriage. The employee argued before the Tribunal that this amounted to unlawful harassment related to her sex and pregnancy because the words used, and therefore the conduct complained of, were inherently discriminatory. The employee noted that a man cannot be pregnant, and argued that discriminatory treatment could be automatically assumed by the Tribunal because what was in issue was her pregnancy.
The Tribunal disagreed with the employee’s argument. It accepted that the manager’s conduct had created an environment satisfying the definition of harassment. However, in its judgment, the manager’s motivation was his belief that the Claimant was lying and his belief that what she had said about her pregnancy was another example of that.
The employee appealed against the Tribunal’s decision. The EAT upheld the Tribunal’s finding on appeal. The EAT held that, when considering whether there has been discriminatory harassment, a Tribunal is entitled to focus on the words used themselves (and their discriminatory nature). However, it is not obliged to do so. Context is an important factor in the Tribunal’s analysis. The Tribunal was entitled to conclude that the conduct in question in this case was a complaint about lying and that it was not made because the employee was female, pregnant or because she had suffered a miscarriage.
Existing case law confirms that words relating to an individual’s protected characteristic may not amount to discriminatory harassment provided they were said without ill intent (see Grant v HM Land Registry). This decision covers new ground as it considers the situation where there was apparent ill intent, but the cause of that ill intent is disputed.