In the recent case of Nixon v Ross Coates Solicitors and another UKEAT/0108/10, the Employment Appeal Tribunal (EAT) held that gossip relating to an employee’s pregnancy is capable of amounting to discrimination and harassment under the Sex Discrimination Act 1975 (SDA).

Facts

The facts of the case are as follows:

Ms Nixon, an employee of Ross Coates Solicitors, was seen kissing another employee at the office Christmas party and accompanying him to a hotel room

A few weeks later, Ms Nixon informed the managing partner of Ross Coates Solicitors that she was pregnant. On the same day, the HR manager found out about Ms Nixon’s pregnancy and began gossiping with other employees regarding the paternity of the unborn child

Ms Nixon told her employer that she would not be able to work in the same office as the HR manager and asked to work at one of the employer’s other offices (away from the HR manager). Ms Nixon took some time off work and raised a formal grievance with her employer

The employer refused Ms Nixon’s request to transfer to another office and told Ms Nixon that it would not pay her for any time she had spent away from work

Ms Nixon resigned from her employment and brought claims for sex and pregnancy discrimination, constructive dismissal and harassment against Ross Coates Solicitors.

The Employment Tribunal held that Ross Coates Solicitors had constructively dismissed Ms Nixon, but dismissed her claims for discrimination and harassment. Further, the Employment Tribunal made a compensatory award for unfair dismissal, but reduced it by 90% in light of the employee’s contributory conduct.

Ms Nixon appealed against the finding that there had been no discrimination or harassment as well as the 90% reduction to the compensatory award.

Decision of the Employment Appeal Tribunal

The EAT held that the Employment Tribunal had been wrong in dismissing Ms Nixon’s claims for sex discrimination, pregnancy-related discrimination and harassment for the following reasons:

The gossip related to the paternity of the unborn child and therefore was clearly connected to Ms Nixon’s pregnancy

The treatment of the employee whilst she was absent from work and the employer’s refusal to pay her wages for such period constituted sex discrimination as it related to the pregnancy

Ms Nixon had felt clear discomfort in relation to the gossiping and this constituted “a course of unwanted conduct” capable of falling within the definition of harassment under the SDA

The EAT held that the Employment Tribunal had been wrong to reduce the employee’s compensatory award by 90%. The EAT found that the Employment Tribunal had not given due consideration to the issue of causation and that Ms Nixon’s behaviour following her resignation should be discounted (as any culpable conduct which took place after the dismissal could not have contributed to the dismissal).

Comment

This case highlights the protective nature of discrimination legislation in respect of pregnant employees. It was of no assistance to the employer that the employee had made details of her sex life public. It also highlights the potential risk associated with Christmas parties.