In Warby v Wunda Group plc the Employment Appeals Tribunal (“EAT”) has upheld a tribunal's decision that there was no harassment on the ground of an employee's pregnancy, when the employee was accused of lying about her pregnancy and miscarriage. The tribunal was entitled to find that the remark, however unpleasant and unacceptable, was made in a particular context in which the words did not relate to the employee's pregnancy but to lying generally, and so were not inherently discriminatory.
W worked as a sales consultant for WG plc. There was disagreement between her and her manager, P, as to what had been agreed at a meeting in 2009 with regard to her entitlement to wage increases. They met to discuss this in early 2010, during the course of which meeting both P and W became convinced the other was lying. Later, in an 'extremely acrimonious' meeting in March 2010, W asserted that her wages were being changed to her detriment because she was pregnant. P denied that W's wages had anything to do with her pregnancy, but then asked her why she had lied about having a miscarriage. The accusation was based on anomalies over dates that W had posted on Facebook.
The tribunal found that the accusation that W lied about her pregnancy and miscarriage created an 'intimidating, hostile, degrading, humiliating or offensive' environment, as described in the legislation. However, it considered that the accusation was not made on the ground of her pregnancy but in relation to her lying more generally than just about what was agreed in 2009. It took the view that the subject matter of the lie could have been any other subject. While the tribunal considered that such an accusation may be unreasonable, it was not harassment on the ground of pregnancy. W appealed, arguing, inter alia, that there is harassment if an employer chooses words that are inherently discriminatory, which words referring to pregnancy clearly are.
The EAT dismissed the appeal. The tribunal was entitled to find that the conduct complained of was a complaint emphatically made about lying; it was not made because of W's sex, nor because she was pregnant, nor because she had had a miscarriage. There was no necessary inherent discrimination in P's words in that context.
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