‘Context is everything’ when determining discrimination claims, EAT rules

An argument that offensive references to an employee’s pregnancy are inherently discriminatory has been rejected in the case of Warby v Wunda Group plc.

The case involved a dispute between Mrs Warby and her employer, Wunda Group plc, about what had been agreed regarding her pay. She and a manager, Mr Pugh, both formed the view that the other was lying about the issue. Mrs Warby alleged that the company had changed her pay because she was pregnant. In response, Mr Pugh asked why she had lied about having a miscarriage.

This allegation arose from apparent discrepancies on a timeline that Mrs Warby had posted on Facebook regarding her previous miscarriage and subsequent pregnancy. Mrs Warby denied that she had lied, and claimed direct sex discrimination and harassment.

The case went to the Employment Appeal Tribunal (EAT), which considered whether the employment tribunal had been entitled to dismiss Mrs Warby’s claims on the basis that Mr Pugh’s comments had to be placed in context, or whether Mr Pugh’s comments were inherently discriminatory because a man cannot be pregnant.

You can read XpertHR’s full report on the decision in its case reports stop press section (no subscription required).

XpertHR employment law editor John Read explains that the EAT decision is useful for employers because it reaffirms that tribunals are obliged to take context into account when deciding whether or not particular conduct constitutes direct discrimination or harassment.

Listen to Read’s full comments on this case in the XpertHR weekly podcast.

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