Warby v Wunda Group Plc

A recent decision by the Employment Appeal Tribunal (EAT) has confirmed that an accusation that an individual has lied about a protected characteristic does not necessarily amount to harassment or discrimination on the grounds of that characteristic.  

The recent case of Warby v Wunda Group Plc concerned a female employee who had a disagreement with her male manager regarding her rate of pay. During discussions about the pay issue, both the employer and employee thought that the other was lying and, as part of this discussion, the employer's manager accused the employee of having lied previously including lying about having had a miscarriage. The employee subsequently brought a claim in the Employment Tribunal for harassment on the grounds of sex and/or pregnancy.

At first instance the Employment Tribunal held that, whilst the accusation of lying about a miscarriage had created an environment that would satisfy the definition of harassment contained in the Sex Discrimination Act (the relevant legislation at the time), i.e. it amounted to unwanted conduct that is related to sex, it was not harassment on the grounds of sex or pregnancy as the employer had had a reason for the comments - namely that it genuinely believed the employee had lied.

On appeal, the EAT stated that the context in which a comment is made cannot be ignored. It acknowledged that words which are hostile may contain a reference to a protected characteristic of the person to whom the comment is made; however, this does not necessarily make them discriminatory. The EAT held that the issue of whether the allegation that the employee had lied about her miscarriage had been because she was pregnant and/or her sex or because the employer genuinely believed that she had lied about it was one of fact for the Tribunal to determine. The EAT therefore ultimately held that it could not conclude that the words spoken by the employer in this case had been inherently discriminatory and held that the Tribunal had been entitled to reach the decision it had.