Work coach's direct sex discrimination claim over ovarian cancer dismissal struck out

This case shows the difficulty of bringing a direct sex discrimination claim when the underlying reason for dismissal is misconduct. The claimant, a work coach with two years' service, was dismissed after carrying out ten unauthorised searches on her employer's IT systems. She had ovarian cancer, which led to menopause, and argued that her dismissal was an act of sex discrimination.

Why the direct discrimination claim failed

The tribunal found no evidence that the claimant's sex was a factor in the dismissal. The employer's decision was based on the misconduct, not on her being a woman. Even though her health condition was linked to her sex, the direct discrimination claim required proof that she was treated less favourably because she was a woman. Without comparator evidence or any indication that a man in similar circumstances would have been treated differently, the claim had no reasonable prospect of success.

The disability claim survives

However, the tribunal allowed the discrimination arising from disability claim to proceed. This type of claim focuses on whether the employer treated the claimant unfavourably because of something arising from her disability – in this case, the unauthorised searches. The tribunal noted that the claimant's condition (ovarian cancer and menopause) could amount to a disability, and the misconduct might be connected to it. This claim will now go to a full hearing.

What this means for similar cases

For employees with health conditions that affect behaviour, a discrimination arising from disability claim is often a stronger route than direct discrimination. Direct discrimination requires proof that the protected characteristic itself motivated the employer's decision – a high bar. By contrast, disability discrimination claims can succeed if the employer failed to make reasonable allowances for conduct linked to the disability.

The case also highlights the importance of getting the respondent's name right on the ACAS certificate and ET1. Here, the mismatch was overlooked, but it could have been fatal to the entire claim.