British Bung Manufacturing Company Ltd & Anor v Mr A Finn
[2023] EAT 165
Blanc de Provence Ltd v Thu Lieu Ha
21 December 2023
[2023] EAT 160
Employment Appeal Tribunal
A woman was fired and claimed sex harassment because the company made her wait alone with two men to deliver the bad news, after making her female colleagues leave. A lower court agreed, but a higher court said they should have asked the men directly if they treated her differently because she was a woman. The case will be reheard.
Key Facts
- •Miss Thu Lieu Ha (Claimant) was employed by Blanc de Provence Ltd (Respondent) as a tailor.
- •Claimant was dismissed for redundancy on March 20, 2020.
- •Prior to redundancy notification, Claimant's female colleagues were removed from the store, and the store was locked, leaving Claimant alone with two male managers.
- •Claimant alleged sex-related harassment based on this event.
- •Employment Tribunal (ET) upheld the harassment claim.
- •Respondent appealed the ET's decision.
Legal Principles
Harassment under Section 26 of the Equality Act 2010 (EqA): Unwanted conduct related to a protected characteristic (sex in this case) with the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment.
Equality Act 2010, Section 26
The test for 'related to sex' is different from 'because of sex' in direct discrimination. 'Related to sex' is wider and can be satisfied even if the conduct wasn't 'because of sex'.
Case law analysis
Fairness requires that allegations of discriminatory treatment, especially where it's claimed a man would have been treated differently, should be put clearly to the alleged perpetrator.
Secretary of State for Justice, HM Inspectorate of Prisons v Dr P Dunn UKEAT/0234/16/DM
The EAT's role is to review errors of law, not to excessively critique the ET's reasoning process.
Brent London Borough Council v Fuller [2011] ICR 806,813
Outcomes
Appeal allowed; ET's decision on sex-related harassment remitted for redetermination.
The ET erred in law by basing its finding of 'related to sex' substantially on its unconvincedness that Mr Charalampous would have acted similarly towards a man, without making an express finding on whether Mr Charalampous treated the Claimant differently because she was a woman. The claimant's assertion that she was treated differently *because* she was a woman should have been put explicitly to Mr. Charalampous.