In Nixon v Ross Coates Solicitors and another, the EAT held that a tribunal had been wrong not to characterise gossip about an employee’s pregnancy as discrimination and harassment under the Sex Discrimination Act 1975 (SDA). The tribunal had also been wrong to reduce compensation by 90% for contributory conduct because it thought the claimant had “irresponsibly” caused the gossip.

At the time of the Firm’s Christmas party Ms Nixon did not know that she was pregnant as a result of a relationship with Mr Perrin, a solicitor Ross Coates. At the party, most people noticed Ms Nixon flirtatiously kissing the IT manager, Mr Wright. They left together. Ms Nixon said she was so drunk she did not know what was happening and did not know that sexual intercourse had taken place between herself and Mr Wright. Upon her return to work in January she told the managing partner, in confidence, that she was pregnant. However, Ms O’Hara, the HR manager found out and made a suggestion to other staff about the paternity of the baby. Ms Nixon claimed that Ms O’Hara had been gossiping and spreading rumours about her pregnancy and about the father of the child. She resigned.

The EAT agreed with the tribunal that Ms Nixon had constructively dismissed. But the tribunal had been wrong not to make findings of sex discrimination, pregnancy-related discrimination and harassment. The gossip was about the paternity of her child. It stemmed from the night of the Christmas party. It was connected with pregnancy. It was also unwanted conduct and met the definition of sex-based harassment under the SDA. The tribunal was also wrong to reduce the unfair dismissal compensatory award by 90% on the basis that Ms Nixon was almost exclusively the author of her own misfortune. The tribunal had not considered the issue of causation and the case would be remitted to the tribunal for it to re-consider compensation. 

November 2010