In Nixon v Ross Coates Solicitors the EAT held that gossip about an employee's pregnancy can amount to pregnancy discrimination and sex harassment.
At the office Christmas party, employees of the law firm witnessed Ms Nixon kissing another employee and spending the night in his hotel room. She was also known to have been in a relationship with another solicitor at the firm. A few weeks after the Christmas party Ms Nixon informed the managing director that she was pregnant. The HR Manager became aware of her pregnancy and straight away began gossiping with other employees about the possible paternity of the baby. Ms Nixon raised a formal grievance about the HR Manager's behaviour and asked to be relocated to a different office to avoid coming into contact with the HR Manager. The firm did not accommodate her request and refused to pay her for her absence during this period. She resigned and brought a claim for constructive dismissal and for sex and pregnancy discrimination in relation to the gossip surrounding her pregnancy.
The EAT found that Ms Nixon had been subject to discrimination. The gossip about the paternity of her child was clearly pregnancy-related. Ms Nixon found the gossip distressing and it was therefore unwanted conduct amounting to sex harassment. Furthermore, the refusal to allow Ms Nixon to work from another office and the firm's decision not pay her for her absence from work stemmed from the problems that had arisen between Ms Nixon and the HR Manager, and therefore related back to the gossip about her pregnancy and behaviour at the Christmas party. As such, this also amounted to pregnancy discrimination.
The EAT also held that the tribunal had been wrong to reduce compensation because of contributory fault. A reduction for contributory conduct should only be made where a claimant's conduct can be shown to have caused or partially caused the dismissal. In this case the tribunal had not properly considered causation and had been influenced by their "dim view" of Ms Nixon's conduct. In addition, a claimant's conduct post-dismissal cannot be the cause of the dismissal and should be disregarded in assessing whether a reduction for contributory conduct is appropriate.
Impact on employers
- Employers should bear in mind that it will often be relatively easy for a pregnant employee to successfully establish that her employer's treatment of her is linked to her pregnancy and to invoke the protection of discrimination legislation. In this case office gossip relating to the claimant's pregnancy was sufficient.
- The case is also a useful reminder to employers of the potential repercussions of inappropriate behaviour at workplace social events and the inevitable rumours that will circulate afterwards. In this case, the fact that the claimant had acted in what was considered to be an inappropriate manner did not prevent her employer being found liable for sex discrimination.