EAT Decision in Blanc de Provence Ltd v Miss Thu Lieu Ha Explores Complexities of Harassment Claims under Equality Act 2010

Introduction

The Employment Appeal Tribunal (EAT) case of Blanc de Provence Ltd v Miss Thu Lieu Ha provides an intricate exploration of the legal principles surrounding harassment related to sex under the Equality Act 2010. The EAT’s decision to remit the case for redetermination sheds light on the complexities of how harassment claims are assessed, particularly concerning the requirement of unwanted conduct to be “related to” a protected characteristic—here, the claimant’s sex.

Key Facts

Miss Thu Lieu Ha, the claimant, was employed by Blanc de Provence Ltd and experienced a series of disciplinary proceedings that culminated in her dismissal on the purported ground of redundancy. On March 20, 2020, two male managers from the company informed the claimant of her dismissal in circumstances that the claimant found intimidating and hostile. The claimant’s colleagues, both women, were removed from the premises, the store was locked, and the claimant was confronted by these managers in the locked store’s basement. The claimant subsequently brought a claim for harassment related to sex, arguing that the conduct of the managers created an intimidating, hostile, degrading, humiliating, or offensive environment for her due to her sex.

Legal Principles

The EAT analyzed the claim under the framework of section 26 of the Equality Act 2010, which defines harassment as conduct that is unwanted, related to a relevant protected characteristic, and has the purpose or effect of violating an individual’s dignity or creating an intimidating environment. The critical question was whether the conduct of the managers was “related to” the claimant’s sex.

The EAT emphasized the distinction between “related to” and “because of” when assessing whether conduct is linked to a protected characteristic, highlighting that the former is a broader and more flexible concept. The crux of the case turned on whether the conduct of the managers was inherently connected to the claimant’s sex, especially whether they would have acted differently if the claimant were a man.

The EAT identified procedural shortcomings in the Employment Tribunal’s original handling, notably the failure to elicit from the managers whether the claimant’s sex was a factor in their conduct. The Tribunal’s reasoning hinged considerably on their belief that the managers would not have felt at liberty to treat a man in the same manner. However, this was not expressly put to them as a direct question, and no clear finding to this effect was made.

Outcomes

The EAT allowed the appeal and identified errors of law in the original judgment, notably concerning the alleged relationship between the unwanted conduct and the claimant’s sex and the failure to properly question the managers about their motivations. The EAT remitted the case for redetermination to a different Tribunal, stipulating that the new Tribunal would not need to redetermine existing primary facts but could consider additional primary facts to conduct a fresh analysis of whether the conduct was indeed related to the claimant’s sex.

Conclusion

The EAT’s decision in Blanc de Provence Ltd v Miss Thu Lieu Ha highlights the significant burden on Employment Tribunals to scrutinize claims of harassment with clear and careful reasoning. The nuances between conduct being “related to” rather than “because of” a protected characteristic and the obligation to provide witnesses with a full opportunity to respond to the substance of allegations against them are critical. This case serves as a reminder of the importance of thorough and precise examination in harassment claims within the complex legal landscape carved out by the Equality Act 2010.