In Warby v Wunda Group plc the EAT held that in deciding whether the words used in a discussion constitute direct discrimination and harassment, the context in which the words are used ‘is everything.’ When the employee’s manager accused her of lying about a miscarriage, then in the context, the reason the words were used was not because of pregnancy, but to highlight the employee’s alleged dishonesty.
Mrs Warby (W) and Mr Pugh (P), her manager, had formed different views about an agreement over her salary. Both thought the other was lying. During a meeting, W said her wages were being changed to her disadvantage because she was pregnant. P denied this was the case and brought up W’s pregnancy, asking her why she lied about having a miscarriage, which she denied. P made the allegation based on timeline entries made on W’s Facebook page, regarding the dates of her miscarriage and her pregnancy.
The EAT upheld the tribunal’s decision that W was not directly discriminated against or harassed when P accused her of lying about a miscarriage. While P’s comments did refer to pregnancy and did offend and upset W, a finding of discrimination or harassment could only succeed if P’s conduct was because of sex, or related to sex, and that was not the case. P raised the miscarriage issue during an argument about whether the employee had lied about a previously agreed salary arrangement. Where hostile words refer to a sex-based issue, “context is everything”. In this context, there was a dispute about lying and P’s comments were clearly about W’s alleged lying overall, and not made because of her sex/pregnancy.
The implications in this case relate in particular to internal investigations into discrimination and harassment complaints. Unreasonable behaviour towards a colleague is never acceptable, and may breach company policy, but whether or not the law has been broken must always be determined in the context in which the actions/words took place. As the EAT confirmed, words that relate to an individual’s protected characteristics are not necessarily inherently discriminatory.
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