The case in point relates to a female employee, who in the context of a heated argument with her employer over pay was accused of lying. There was also an allegation relating to the employee's claimed miscarriage earlier in the year, which the employer called into doubt.
The employee found the remarks distressing but the question then arose whether the employers reference in such a way to a uniquely female matter constituted sex discrimination and harassment.
Naeema Choudry, partner at global law firm Eversheds said: "Discrimination law in the UK is well-understood by now as protecting employees from disadvantageous treatment relating to protected characteristics such as their sex, race and disability.
"Unwanted conduct related to such protected characteristics will also constitute harassment if it creates an intimidating, hostile, degrading, humiliating or offensive environment for the individual (whether or not intended). The important question in every case is the individual's perception and where to draw the line between unreasonable or unpleasant conduct at work and conduct which is harassing or discriminatory in nature," Choudry said.
"However, making that distinction isn't always as easy as it sounds, particularly for employers who may find themselves on the receiving end of a discrimination complaint.
"The decision by the Court of Appeal, which is expected in the new year, should help to clarify whether the use of words in the workplace which refer to a protected characteristic are inherently discriminatory and, in causing offence, also qualify as unlawful harassment.
She continued: "Previous cases have sought to preserve a discretion to the employment tribunals, encouraging them to look to the context of the language used. For example, calling someone a name in reaction to them spilling hot coffee on you should be construed quite differently from an unprovoked insult, due to the context. However, these cases have not concerned claims of personal attack, such as accusing an employee of lying over pregnancy.
"This calls into question whether motive does or should matter in such circumstances, if a colleague's conduct causes offence and their words relate to an issue of discrimination?
She added: "It will be interesting to see whether the Court of Appeal will finds that it does and that the accusation of lying over a miscarriage, was merely used as an illustration of her alleged lying and was not of itself discriminatory."
