Under the Sex Discrimination Act, a woman can claim direct sex discrimination if her employer treats her less favourably than a man. To succeed, however, she has to show that the reason is because of her sex. It does not have to be the only reason, but it does need to be the main one.
In Brumfitt v Ministry of Defence and anor (2005, IRLR 4), the employment appeal tribunal (EAT) said that, although Ms Brumfitt had been badly treated, it was not because of her sex.
What were the facts?
Ms Brumfitt served in the RAF for 13 years until May 2003. From January 1999 she was based at RAF Cosford, under the supervision of Sergeant Fitzpatrick, an officer well known for his offensive language.
In February 2001 she attended a one-day course conducted by Sgt Fitzpatrick. During the day, he made a number of obscene remarks to both the men and women in the audience. Ms Brumfitt complained about his behaviour and when this was not resolved to her satisfaction, she brought a claim of sex discrimination.
The tribunal rejected her claim, saying that, although she had been victimised by Sgt Fitzpatrick when he completed her 2002 annual appraisal, she had not been discriminated against on account of her sex. Everyone on the course had been subject to the same treatment, irrespective of their gender.
Nor was there any basis to conclude that the inadequate investigation of her complaint of sex discrimination had anything to do with her gender.
What did the parties argue on appeal?
Ms Brumfitt argued that women in general were more likely to be offended by his language than men. The burden was therefore on the MoD to prove they had not discriminated against her and they had failed to do that.
The MoD, on the other hand, argued that she had to show she had been treated differently on account of her sex. The fact that she was offended by the language used was irrelevant to the "but for" test. It pointed out that the other woman on the course had found it funny, whereas some of the men had been offended.
What did the EAT Decide?
"But for" test: The EAT agreed with the tribunal that the "but for" test had not been satisfied. The tribunal had found, as a matter of fact, that Sgt Fitzpatrick had not singled out Ms Brumfitt and that his conduct was insensitive to everyone present, irrespective of their gender.
It said that the relevant questions in any claim of direct discrimination are:
has the complainant been treated less favourably than the comparator with whom she is to be compared, and
has she been treated in that way because of her sex.
Sexual harassment: the EAT also rejected the proposition that the facts met the definition of sexual harassment under a European amending directive which does not require a comparator.
However, as the EAT pointed out, she could not rely on it as it does not come into effect until late 2005.
Human rights: Ms Brumfitt also argued that her human rights under the European Convention had not been protected, particularly her right to a private life and her right to be protected from discrimination.
The EAT decided that the circumstances of her case did not fall within any of the articles under the Convention.
The investigation: Ms Brumfitt argued that the tribunal should have found that her employer's inadequate investigation into her complaints amounted to direct sex discrimination.
However, the EAT said that a failure to investigate a complaint of sex discrimination properly is not necessarily sex discrimination. All the usual requirements still had to be satisfied.
The EAT therefore dismissed her appeal.