Sex discrimination

European law does not entitle a job applicant to force a prospective employer to disclose why he or she wasn’t successful, in order to establish facts on which to base a discrimination case. However, an employer’s refusal to grant access to such information may be taken into account by national courts when establishing facts from which direct or indirect discrimination can be inferred.

Context is all where discrimination is involved. A female employee was not sexually harassed when her manager, during a heated exchange about her pay, accused her of lying about her pregnancy and miscarriage. The remark, while 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 was not inherently discriminatory.

While a woman may be placed at a disadvantage because she is a nursing mother on maternity leave in, for example, being called to attend a disciplinary hearing, that does not automatically make her treatment direct sex discrimination. A tribunal must establish what the reason is for the disadvantageous treatment - behaviour may be unreasonable without being discriminatory.

An NHS trust and three senior members of staff have been ordered to pay £4.5m in compensation to a hospital consultant who was subjected to a sustained campaign of sex (and race) discrimination which resulted in chronic post-traumatic stress leaving her unable to work again in her professional capacity.

The legal prohibition against discrimination on the grounds of marital status doesn’t just cover that status in the abstract (i.e. whether one is married or unmarried) – it also outlaws discrimination on the grounds that someone is married to a particular person. Although the employer in this case didn’t discriminate against married people generally, the employee could rely on less favourable treatment that was specific to her marriage.

In this case the EAT uprated the previous maximums for injury to feelings compensation.