This is a preview. To continue reading please log in or Register to read this article

Harassment: Actual or hypothetical comparator required in harassment cases

This report relates to 1 case(s)

Key points

In Brumfitt v Ministry of Defence and another, the EAT holds:

  • In all cases of direct sex discrimination, including sexual harassment, a male comparator, whether actual or hypothetical, is required. This is consistent with case law and EU law, prior to the implementation of the Amending Equal Treatment Directive 2002/73/EC in October 2005, which introduces a definition of sexual harassment that does not require a comparator.
  • The tribunal was correct to find that as the offensive conduct of the employee's supervisor, which gave rise to the claim for sexual harassment, was not specifically directed at the employee or females in general. It could not be said that "but for" her sex the employee would not have suffered the treatment. The tribunal was correct to hold that the employee suffered the treatment, not because she was female, but because (like others of both genders) she had "the misfortune" of being required to attend the training course, during which the offensive behaviour took place.
  • The tribunal was correct in its finding that the inadequate investigation into the incident of sexual harassment by the MoD was not necessarily sex discrimination in itself, unless an actual or hypothetical comparator would have had their complaint investigated properly.