Warby v Wunda Group Plc (Harassment)

Conduct referring to pregnancy or miscarriage is not necessarily harassment or direct sex discrimination merely because it concerns a sex-specific characteristic. The tribunal must assess why the words were used and consider the whole context, including the terms, recipient and purpose of the remark. Unpleasant or unreasonable conduct does not become discriminatory without the required connection with sex or pregnancy. A remark made in an argument about whether the claimant was lying may be found to relate to that dispute rather than to her sex, pregnancy or miscarriage. Whether the statutory connection exists is ordinarily a question of fact for the Employment Tribunal, subject to appellate review for error of law or perversity.

The claimant appealed from an Employment Tribunal decision dismissing claims of direct sex discrimination, harassment and constructive unfair dismissal. During an acrimonious grievance meeting about pay, her manager accused her of lying about a pregnancy and miscarriage. The tribunal found that the words created an offensive or hostile environment, but concluded that they were used to emphasise an accusation of lying and were not made on the grounds of pregnancy. It also rejected the alleged abortion accusation and dismissed the constructive dismissal claim as out of time. The central issue on appeal was whether words referring to pregnancy were inherently discriminatory, or whether their statutory character depended on the context and reason for their use.

1. Appeal dismissed. The Employment Tribunal had not erred in law in finding that the accusation created an offensive environment but was not harassment on the grounds of pregnancy.
2. The distinction between conduct being inherently discriminatory and conduct becoming discriminatory because of the actor’s reason or mental process was material. James v Eastleigh Borough Council illustrated the former category, whereas Nagarajan v London Regional Transport illustrated the latter. The question was why the alleged discriminator acted as he did, not whether the protected characteristic formed part of the surrounding circumstances.
3. Context was of central importance. The tribunal was entitled to consider the heated dispute, the accusation of lying, the terms used and their purpose together. A reference to pregnancy or miscarriage did not necessarily make the conduct related to sex or pregnancy, and the words were not to be examined in isolation.
4. The tribunal was entitled to find that the manager’s purpose was to identify another alleged lie, not to attack the claimant because she was a woman, pregnant or had miscarried. Unreasonable and offensive conduct was not, without more, discriminatory.
5. The finding that no accusation of abortion was made was one of fact. The constructive unfair dismissal issue did not arise for substantive determination because the discrimination claims failed and the claim was out of time; the tribunal’s decision therefore stood.

• Employment Tribunal: Claims of direct sex discrimination, harassment and constructive unfair dismissal were dismissed. Reasons were given on 16 March 2011.
• Employment Appeal Tribunal: The appeal was dismissed. The tribunal’s findings on harassment, discrimination, the alleged abortion accusation and limitation were upheld.