The Claimant was made redundant after her two male managers visited her in the shop where she worked, asked her two female colleagues to leave and then told her in the basement of the shop that she was dismissed. The Claimant submitted a claim to the ET claiming race and sex discrimination and including claims for holiday pay and arrears of pay. The ET concluded that the Claimant was knowingly deprived of her female companion and left as the only female in the store, contrary to her expressed wishes. The store having been locked from the inside so no-one else could enter, she was required to go down to the basement and submit to a one-sided process conducted by two managers standing over her. The conduct was the more unwanted because the Claimant was a woman and the two managers were men. The ET was not convinced that one of the male managers would have felt at liberty to treat the Claimant in that way had she been a man. For this reason the ET found the conduct was related to the Claimant’s sex and her claim of sex harassment therefore succeeded. The Respondent appealed.

The EAT allowed the appeal. They considered that the ET erred in law in its determination that the conduct of the meeting in the basement was related to sex, completely or substantially because it was “not convinced that [the manager] would have felt at liberty to treat the Claimant in that way had she been a man”. The suggestion that the manager would have treated a man differently, or, put another way, the Claimant was treated as she was in part because she was a woman should have been put to the manager fairly and squarely.