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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> B v A [2007] UKEAT 0450_06_0901 (9 January 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0450_06_0901.html Cite as: [2007] IRLR 576, [2007] UKEAT 0450_06_0901, [2007] UKEAT 450_6_901 |
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At the Tribunal | |
On 1 November 2006 | |
Before
THE HONOURABLE LADY SMITH
MR D G LEWIS
MR H SINGH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant (Respondent) | Mr M Purchase (of Counsel) Instructed by: Messrs CT Emezie Solicitors The London BIC Innova Science Park Enfield Middlesex EN3 7XU |
For the Respondent (Claimant) | Mr P McLeish (of Counsel) Instructed by: Messrs Dowse & Co Solicitors 23-25 Dalston Lane London E8 3DF |
Summary
Sex discrimination - Direct
The Claimant was employed by the Respondent, who was a solicitor in a small practice. A close and intimate relationship developed between them. He dismissed the Claimant when he saw her with another man on account of jealousy and the discovery that she had another relationship. The dismissal was unfair. The Tribunal also found that the Respondent had discriminated against the Claimant on grounds of sex in dismissing her in respect that dismissal would not have occurred but for the fact that the Claimant was a woman. The Respondent appealed against that finding and the EAT upheld the appeal since the Tribunal had plainly and wrongly applied a "but for" test to the question of whether or not discrimination on grounds of sex had occurred.
THE HONOURABLE LADY SMITH
Preliminaries
Introduction
Background Facts
The Tribunal's Findings in Law
"A's dismissal stands alone as a new cause of action which the Tribunal finds an unlawful act of direct discrimination on grounds of sex entitling A to a declaration and to compensation which will be determined at a separate hearing. Dismissal would not have occurred but for the fact that A was a woman and the Tribunal conclude that it is overtly an act of less favourable treatment amounting to a detriment and viewed as such not only by A but also would be so regarded by any reasonable person (R v Birmingham City Council, ex parte EOC 1989 IRLR 173(HL)."
The Relevant Law
"1(2) ………a person discriminates against a woman if –
(a) on the ground of sex, he treats her less favourably than he treats or would treat a man …….
5(1) In this Act –
(a) references to discrimination refer to any discrimination falling within Sections 1 to 4; and
(b) references to sex discrimination refer to any discrimination falling within [Section 1,2, or 3A],
and related expressions shall be construed accordingly.
………………..
(3) Each of the following comparisons, that is –
(a) a comparison of the cases of persons of different sex under Section 1(1) or (2) ……………..
must be such that the relevant circumstances in the one case are the same , or not materially different in the other."
"Contrary to views sometimes stated, the third ingredient ('by reason that') does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the 'operative' or the 'effective' cause. Sometimes it may apply a 'but for' approach. For the reasons I sought to explain in Nagarajan ………, a causation exercise of this type is not required either by Section 1(1)(a) or Section 2. The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."
"It is not enough that there would have been no rumours but for Ms Emokpae being a woman. The Employment Tribunal had to be able to infer that the reason in the mind of Mr Emezie was her sex, but the Tribunal's acceptance of the rumours as the reason for dismissal shows that she was not dismissed on the ground of her sex."
"It seemed to us that the critical issue posed by Section 1(1)(a) was whether Mr Lovering dismissed Mrs Martin 'on the ground of her sex' an issue requiring a consideration of why he dismissed her. As we have said, we interpret the Tribunal as having found that the dismissal was because of the breakdown of the relationship. That, therefore, was the reason for her dismissal, not because she was a woman. We accept that, but for her sex, there would have been no affair in the first place. It could, however equally be said that there would have been no such affair 'but for' the facts (for example) that she was her parents' daughter or that she had taken up employment with Lancehawk. But it did not appear to us to follow that reasons such as those could fairly be regarded as providing the reason for her dismissal."
"… the statutory definition of what constitutes discrimination involves a comparison …. between the treatment of the victim on the one hand and of a comparator on the other hand. The comparator may be actual … or hypothetical …. but …. if there is any material difference of the comparator, the statutory definition is not being applied."
" … there is no escape … from the need to resort to a comparison." (per Lord Hope at paragraph 94).
Thus, there may be no need for an actual or hypothetical comparator but there must, to accord with the statutory requirements be an appropriate comparison.
Respondent's Case on Appeal
Submissions for the Claimant on Appeal
Discussion and Conclusions
"… the reason for the dismissal was driven by jealousy or the discovery of A's relationship with Mustafa. There was no business reason."
Disposal