EAT Sex Discrimination – Continuing act – Direct – Comparison – The Claimant’s appeal
The Claimant was employed by the Second Respondent (R2); her employment was transferred under TUPE to the First Respondent (R1). The Third Respondent (R3) was employed by R2. He carried out harassment of the Claimant before and after the TUPE transfer. The Employment Tribunal held that R2 (which was in liquidation) was vicariously liable for R3’s acts while the Claimant was employed by R2 and that the claim in respect of R3’s acts after the transfer could not succeed because the Claimant and R3 were not in the same employment. They did not make a finding that R2’s liability had transferred to R1.
On the Claimant’s appeal it was conceded that, but for time limits, R2’s liability passed by the transfer to R1; but it was argued that time began to run from the date of the transfer and that acts of harassment which were committed subsequently could not extend that time.
Held that Sodexho v Gutridge [2009] ICR 1486 did not apply; the time provisions of the Equal Pay Act were different from those which applied to the present claims under the Equality Act. The ET had found that the harassment was an act extending over a period and that the last act was less than 3 months before the claim was lodged; and the claim in respect of harassment was not out of time. In any event the Employment Tribunal was entitled to find that it was just and equitable to extend time. Appeal allowed.
R1’s appeal
The Claimant was dismissed after she had or was accused of having some kind of relationship with one of R2’s footballers–which was forbidden. No steps were taken against the footballer. The Employment Tribunal found that the Claimant’s dismissal was on the grounds of her sex.
R1 attacked that finding on the basis that the Employment Tribunal had used the wrong comparator and had reached their decision by applying a ‘but for’ test when they should have asked themselves what was the ‘reason why’ the Clamant was dismissed. As to comparator, it was argued that the Employment Tribunal should have taken a hypothetical homosexual man in the position of the Claimant who had a relationship with a homosexual footballer.
Held. Considering B v A [2007] IRLR 576, Martin v Lancehawk (EAT/0523/03), Schofield v Stuart Kauffman (EAT 11.10.02) and Chief Constable of South Yorkshire v Vento [2001] IRLR 126 that it was not necessary for the Employment Tribunal to construct the particular hypothetical comparator proposed; they had used a sufficiently close comparator – a male in similar circumstances.
As to the second argument, there was nothing which indicates that the Employment Tribunal had applied the wrong test or the ‘but for’ test. Appeal dismissed.
Jeffrey Burke QC HHJ
[2014] UKEAT 0192 – 13 – 0711
Bailii
England and Wales
Employment
Updated: 23 December 2021; Ref: scu.538839
