The EAT case of Queen Victoria Seamen’s Rest Ltd v Mrs D Ward highlights the ongoing difficulty Tribunals encounter in determining causation in discrimination cases. As Lord Nicholls observed back in 2001, causation is ‘a slippery word’. This case also serves as a useful reminder of the general position.
QVSR employed Mrs Ward as an Operations Manager. She became pregnant and submitted a grievance in relation to her treatment. Considering this was not investigated properly she resigned, alleging ‘intolerable behaviour’ from her employers. She complained to the Tribunal of automatic unfair dismissal by reason of her pregnancy and less favourable treatement on the ground of her pregnancy.
QVSR appealed on the basis that the tribunal had applied the wrong test when considering whether there was discrimination on the ground of pregnancy. It claimed the tribunal had applied the test that ‘but for’ the failures identified, the subsequent acts of discrimination would not have occured. They claimed the tribunal should have asked ‘the reason why’ the treatment afforded to Mrs Ward had occured and then it would have found the reason was not her pregnancy.
The EAT have confirmed that in deciding whether events or actions are on the ‘grounds of pregnancy’ (as required by the Sex Discrimination Act 1975) a Tribunal should simply ask itself ‘why’ did they occur? They found in this case that in reality this is what the Tribunal had done. The confusion arose because of the Tribunals use of the words ‘but for’ in their judgment. The EAT also reiterated that no comparator is required in pregnancy cases.
So, really a reminder to us of the correct test to be used in pregnancy related discrimination cases. And a reminder to Tribunals of being careful as to the words they use in judgments as otherwise, like in this case, a claim can end up in the EAT when really there should have been no debate in law entitling QVSR to appeal.