Blanc de Provence Ltd v Thu Lieu Ha

For harassment under section 26 of the Equality Act 2010, unwanted conduct must be related to the protected characteristic. The expression “related to” is wider than “because of”, but the tribunal must identify and explain the evidential features which establish the required relationship.

If a tribunal relies materially on an inference that the alleged harasser would have treated a person of the opposite sex differently, it must make an express finding on that issue. The allegation must ordinarily have been put fairly and squarely to the alleged harasser. The sex of those involved may be relevant within the whole factual context, but the analysis is fact-specific and must be clearly explained.

The claimant, a female tailor, alleged harassment related to sex after two male managers required her female colleagues to leave, locked the shop and informed her in the basement that she was being dismissed for redundancy. The Employment Tribunal at London Central upheld the sex-harassment claim, finding that the conduct had created an intimidating and hostile environment and was related to sex.

The employer appealed. It contended, in particular, that the Tribunal had erred in finding the conduct related to sex and that it was procedurally unfair to rely on an assertion that the claimant would have been treated differently had she been a man when that assertion had not been put to the managers.

1. Appeal allowed. The Employment Tribunal erred in law in its analysis of whether the unwanted conduct was related to sex for the purposes of section 26 of the Equality Act 2010.

2. The phrase “related to sex” is broader than treatment “because of sex”. A finding of discriminatory motivation, or of different treatment of a man, is therefore not essential. Nevertheless, the tribunal must identify and articulate with sufficient clarity the feature or features of the facts and evidence which establish the relationship between the conduct and sex.

3. The Tribunal treated its view that the manager would not have felt at liberty to treat a man in the same way as a substantial reason for its conclusion. It made no express finding that a man would have been treated differently. Its statement that it was not convinced that the manager would have treated a man in the same way was insufficient to support that conclusion.

4. Where the case is advanced on the basis that the claimant was treated as she was because she was a woman, that allegation should generally be put fairly and squarely to the alleged perpetrator. It had not been adequately put here. The claimant had nevertheless sufficiently raised sex-related harassment for the issue to remain live.

5. The existing primary findings remain binding. The claim is remitted to a differently constituted Employment Tribunal, which may make additional primary findings and must undertake a full, clearly reasoned and fact-specific analysis. The fact that the managers were men and the claimant a woman may be relevant with the other circumstances, but cannot alone determine the issue. Grounds 2 and 3 succeeded; ground 4 failed.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted the sex-related harassment claim for redetermination.

• Employment Tribunal, London Central: By a judgment sent on 6 August 2021, dismissed race harassment but upheld harassment related to sex.