Sex discrimination

Case 16: The facts

The claimant in this case worked for a solicitor in a small practice and developed a close and intimate relationship with him. He dismissed her out of jealousy when he saw her out with another man. She won her claims for unfair dismissal and sex discrimination, but he appealed the finding on sex discrimination.

The ruling

The tribunal had found that the claimant’s dismissal amounted to sex discrimination because the employer would not have dismissed her “but for” the fact that she was a woman. However, the Employment Appeal Tribunal (EAT) held this was the wrong test; the question a tribunal has to ask is, why did the claimant receive the less favourable treatment? The reason for dismissal was jealousy and the discovery of the claimant’s relationship with someone else; it was not because she was a woman.

The tribunal should have constructed a hypothetical comparator, who would have been a homosexual male employee of a homosexual male employer. He would have been treated in the same way, the EAT said; dismissal was not, therefore, on grounds of the claimant’s sex and did not amount to sex discrimination.

B v A EAT/0450/06