Case - Warby v. Wunda Group Plc (Court of Appeal)

Court of Appeal - Hilary Winstone

The Claimant, a sales consultant at Wunda Group plc, was in dispute with her manager Mr Pugh as to her pay entitlement. At a meeting to discuss the issue, both parties formed the view that the other was lying.

The Claimant raised a grievance about this meeting and the matter was discussed again in an ‘extremely acrimonious’ second meeting where Mrs Warby alleged that her pay arrangements were being changed because she was pregnant. Mr Pugh denied this but escalated matters by asking her why she had lied about having a miscarriage previously, an allegation which arose from apparent anomalies on her Facebook page.

Mrs Warby brought claims for direct sex discrimination and harassment.

The ET held that if the accusation of lying about pregnancy was on the grounds of her pregnancy, it would have satisfied the statutory definition of harassment. Crucially however, the Tribunal found that Mr Pugh’s accusation was made to prove the Claimant was a liar generally and was not related to, or on the grounds of her pregnancy.

The Claimant appealed on the basis that the words used were inherently discriminatory and self-evidently on the grounds of her pregnancy as, without her being pregnant, the accusations could not have been made. On the Claimant’s argument, the motivation of Mr Pugh was irrelevant as the words themselves answered the question of whether discriminatory language was used. The Claimant argued that in such circumstances, the only issues was whether the words had the effect required of them by statute.

The Appeal

The Employment Appeal Tribunal rejected the Claimant’s appeal

Mr Justice Langstaff concluded: "Context is everything ... Words that are hostile may contain a reference to a particular characteristic of the person to whom and against whom they are spoken. Generally a tribunal might conclude that in consequence the words themselves are that upon which there must be focus and that they are discriminatory, but a tribunal, in our view, is not obliged to do so."

The context in this case was a dispute about lying and therefore the tribunal was therefore entitled to conclude that it was not made to Mrs Warby because of her sex, because she was pregnant or had had a miscarriage.

The Court of Appeal will hear an appeal in December 2012. Hilary Winstone represents Mrs Warby.

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