The Supreme Court in America has ruled that a dentist who dismissed a female assistant because he found her “irresistible” did not act unlawfully or discriminatory.
The dental assistant had worked in the practice for 10 years prior to her dismissal which was on the basis that the dentist who ran the practice (and his wife) regarded the assistant as a threat to their marriage. The assistant was dismissed and replaced by another female. The Court held that the dismissal did not amount to sex discrimination because the decision was motivated by feelings as opposed to gender.
It would be interesting to see how this case would have been decided in the UK. There was a similar case decided in the UK by the EAT in 2003 (Martin v Lancehawk Ltd t/a European Telecom Solutions). A female employee had been having an affair with the company’s managing director. Problems developed with the relationship and the female subsequently told her husband about the affair (despite having told the managing director that she would not do so). She was dismissed shortly after coming clean and the tribunal ruled that her dismissal for gross misconduct was unfair.
However, the tribunal rejected her claim of direct sex discrimination. The claimant appealed, arguing that the only reason that the managing director had engaged in an affair was because she was a woman – but for her sex there would have been no affair and thus no dismissal. The EAT, in rejecting her appeal, reiterated that the key question in claims of direct discrimination will generally be “why did the employer act as they did?” In that case, the EAT accepted the employer’s evidence that the reason for her dismissal was not her sex, but the breakdown in the personal relationship.Jack Boyle Solicitor – Employment Law