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Issue 95 (December 2004)

Contents

In the news
Discriminating over porn
Opting out
An update of trade union law
Hope fades for recognition
Jurisdictional deductions
Unequal pay
Time of transfer

Discriminating over porn

In an unusual sex discrimination case - Moonsar v Fiveways Express Transport Ltd - the EAT (employment appeal tribunal) has held that it was sex discrimination, in these circumstances, for a man to download porn at work.

What were the facts in this case?

Ms Moonsar had been working as a part-time clerk in the evenings for Fiveways for less than three months when she was dismissed for redundancy. She brought a claim for race discrimination (on the ground that a white employee with less service was retained) which the tribunal upheld and awarded her £1,000 for injury to feelings.

She also brought a claim for sex discrimination on the grounds that male members of staff downloaded pornographic images onto screens in a room where she was working, on three different occasions.

Although not circulated directly to her, she knew what was going on, but made no complaint at the time because she wanted to keep her job. The last occasion was shortly before she was dismissed.

The tribunal decided that this could not amount to sex discrimination because she had not been shown the images and had not made any complaint about the men viewing them. Nor did it believe her story that she wanted to keep her job and so felt she had to 'keep her head down'.

What did Ms Moonsar argue?

Ms Moonsar argued that in claims of sex discrimination the tribunal was legally obliged (under section 63 of the Sex Discrimination Act and the decision in Barton v Investec) to look for any evidence from which it could conclude that there had been sex discrimination. If they decided there was, then the burden of proof passed to the employer to prove that he or she did not discriminate.

In this case, Ms Moonsar said the facts of the case could easily have amounted to sexual harassment, whether or not the images were circulated to her. It was clear that the men's behaviour amounted to an affront to her dignity. The tribunal had even made a finding that she found their behaviour unacceptable. The logic of that finding meant that she had suffered a 'detriment' or disadvantage.

She also argued that her failure to complain was not relevant in assessing whether she had suffered a detriment. She relied on the EAT's decision in Driskel v Peninsula Business Services Ltd to support her point that the men's behaviour was so obviously detrimental to her that it was 'of no significance' that she had not complained.

And, finally, she argued that because the tribunal had not considered the issue of an appropriate male comparator, it had failed to consider the effect of the use of pornography on that comparator. Had it done so, it would have concluded that such behaviour amounted to less favourable treatment for a woman than a hypothetical male comparator.

What did the EAT decide?

And the EAT agreed. It said that, viewed objectively, the men's behaviour could be regarded as degrading or offensive to a woman. It was, therefore, potentially less favourable treatment.

The burden should then have shifted to the employers (who did not turn up for the hearing) to show that there was not less favourable treatment, for instance that she was a party to or enjoyed what was going on.

Because the employers played no part in the hearing, the EAT said it had to substitute a finding that there was sexual discrimination in this case. It remitted the case to another hearing to decide on the level of compensation.

However, the EAT dismissed her appeal against the award for race discrimination. It agreed it was on the low side, but was not unreasonable.