I’m a fantastic boss, how can I possibly be being sued for sex discrimination?

Most employers these days, if asked, would say that they treat everyone fairly and that they don’t discriminate.   Almost without exception, when I am instructed by companies both large and small who have been sued for unlawful discrimination, (whether it be sex, race, disability or other form of discrimination), the very first thing I get from the client is a sense of outrage that the former employee has had the audacity to pursue such a claim.   There is almost always an immediate refusal to consider even the possibility of reaching a settlement and the stance is usually that the person pursuing the claim is a villain and that his or her claim must be defended as a matter of principle at any cost.

Of course, that is good news for me  as clearly a claim which settles quickly is going to result in far less time and expense on legal fees for the client than one which is fought all the way to the employment tribunal.  However, I will usually try to get the client to  see the facts of the case from the point of view of the former employee and to see how seemingly innocuous events can be interpreted in a far more sinister way.

Take the following example:

Andy is a senior manager in a company.  Andy is 40 and is married to Kate who is a full-time Mum to Andy’s two children who are aged 3 and 5.  Andy loves his kids but doesn’t really have to worry about them too much as Kate takes care of their day to day needs.  Andy has a good sense of humour and loves a bit of office banter.  Andy sees the company as being very collegiate and friendly and works hard to maintain that atmosphere.  Andy is big on fostering a team sprit and organises team get togethers and outings frequently in order to try and keep the cohesion in the department.   Andy sees himself as being a really good and supportive boss. Andy is  a huge fan of a Tottenham Hotspurs.

Alex, 35 and single, who has recently joined Andy’s team is also a long time Tottenham Hotspurs supporter.  Andy is delighted to have someone to moan about their pathetic performance this season with.  Andy is also pleased to note that Alex enjoys going for a few drinks after work as Andy thinks that after work bonding is key to having a successful department.

Another member of Andy’s team is  Sam.   Sam has been with the company for about 6 years and has always done well.  She has never had a bad appraisal.  Sam has a young family so doesn’t really like to go out much after work as she needs to be home to look after her kids.  Andy understands and, in fact, recently agreed to a flexible working arrangement, on a trial basis.  Andy has also been trying to cut Sam a bit more slack on the client facing front so he’s started taking Alex with him to client meetings and on client entertaining events rather than inviting Sam.   Andy thinks that he is demonstrating what a caring boss he is.

Alex is now getting to meet lots of clients and is performing really well.  Andy is delighted and decides to invite Alex to pitch to a really important new client.  This is a fantastic opportunity for Alex as he’s only been with the company for 6 months and this sort of pitch would normally go to someone more senior.   However, Andy is really keen to support Alex and loves his enthusiasm.

Sam is starting to feel sidelined and wonders if it is because she has asked for flexible working.

You can see from the above scenario how it wouldn’t take much  for Sam to go from simply feeling sidelined to feeling like she was being pushed out and discriminated against.  However, I’m sure you can also see how, if Andy were to receive a Tribunal claim for sex discrimination he would be absolutely appalled and probably very angry.  When you look at the whole picture, it is very easy to see how and why many claims end up at the Employment Tribunal.