04 May 2012 #Employment
In the case of Warby v Wunda Group plc, Mrs Warby worked as a sales consultant for Wunda Group plc. A dispute arose between Mrs Warby and her manager, Mr Pugh. There was conflict as to what had been agreed to be her basic salary. Each party accused each other of lying. Mrs Warby stated that her wages had been changed because she was pregnant. Mr Pugh denied this, and then was prompted to ask her why she had previously lied about having a miscarriage (as he had been privy to facebook information that indicated this). Mrs Warby denied that she had lied, and brought a direct discrimination and harassment claim against Mr Pugh`s accusation.
The tribunal found that Mr Pugh`s comments did not amount to unlawful discrimination or harassment. They commented that the fact that pregnancy was the subject matter of the comments, or that the comments were unreasonable, did not mean that Mr Pugh made them "on the ground of" pregnancy (or, by extension, on the ground of sex).
Mrs Warby appealed to the EAT, arguing that because Mr Pugh`s words concerned pregnancy they were "inherently discriminatory" for direct discrimination and harassment purposes. However the EAT upheld the tribunal`s decision that no unlawful discrimination or harassment had occurred.
The EAT upheld the tribunal`s conclusion that Mr Pugh’s comments had not been made on the ground of Mrs Warby’s pregnancy. They stated that the fact that the protected characteristic was related to the circumstances of the treatment did not necessarily mean that the characteristic formed part of the ‘ground’ for treatment. Also the tribunal must consider the facts and contextualise the words that are thought to be discriminatory. Finally in this particular case the context of the dispute was based on lying. Therefore it was reasonable for the tribunal to associate the choice of Mr Pugh’s words to be a result of his complaint that he thought Mrs Warby had been lying and not because he was discriminating against her on the grounds of her pregnancy or sex.