The EAT handed down judgment in Blanc de Provence Ltd v Miss Thu Lieu Ha [2023] EAT 160 on 21 December 2023. HHJ Tayler, sitting as part of a full panel, held that the Tribunal had erred in its approach to a finding of harassment related to sex against the Appellant (Respondent at first instance) The EAT further remitted the issue back to a freshly constituted tribunal for redetermination.
Central to the Appeal was a finding at first instance that the Claimant had been subjected to sex-related harassment due to the manner in which two male employees of the Respondent had handled a redundancy meeting in March 2020. In particular, the Tribunal made a finding that they were not convinced that one of the male employees would have treated the Claimant in that way that he did if she was male.
The EAT accepted the arguments made by the Appellant that this finding was unsafe given that the Tribunal did not make any express finding on this issue and furthermore this proposition was not put to the employee in question directly or indirectly by the Claimant or the Tribunal during the hearing thus depriving the employee any opportunity of responding to the proposition.
In considering whether remission should be to the same Tribunal or a fresh Tribunal, the EAT accepted the submissions made on behalf of the Appellant that the Tribunal’s questioning, including suggesting that where two men “confront” a woman it is “common sense” that harassment is established could lead the Appellant to fear that the view expressed is more than provisional, accordingly the matter was remitted to a fresh Tribunal for redetermination.
The judgment can be read here.
Paras Gorasia of Old Square Chambers (leading Finnian Clarke of Doughty Street Chambers) acted for the Appellant (Blanc de Provence Ltd) and was instructed by Sarah Garth of Keystone Law.
