The EAT has held that where a female employee is dismissed due to jealousy resulting from a relationship with her employer, this does not constitute discrimination on the grounds of sex.

Facts

A, a female employee of B, brought unfair dismissal and sex discrimination claims after being dismissed upon B's discovery of her relationship with another man, M. Both claims were upheld by the tribunal. However, on appeal against the sex discrimination claim by the employer the EAT overturned the tribunal's decision.

The EAT criticised the reasoning of the tribunal who had concluded that, 'but for the fact that she was a woman, A would not have been dismissed.' The EAT noted that consideration also had to be given to the reason and motive behind the treatment in question. In this case it was jealousy and the discovery of A's infidelity. The EAT also used a comparator of a homosexual male employer who discovered his homosexual male employee, and partner, having an affair. In these circumstances the EAT held that such an employee would have received exactly the same treatment as A and so she had not been discriminated against on the grounds of sex.

Impact on employers

This case has fairly unusual facts and has produced an interesting result stemming from the use of the comparator. Employers should be cautious about the emphasis on the motive of the discriminator as in many other cases with more familiar fact patterns the motive will rarely be conclusive or even relevant to the issue of whether discrimination has occurred.