Moyhing -v- Barts and London NHS Trust
The Sex Discrimination Act (SDA) says that employers cannot justify a case of direct discrimination. In Moyhing -v- Barts and London NHS Trust, the employment appeal tribunal (EAT) said that the law cannot be changed, however reasonable the policy that led to the discrimination.
What were the basic facts?
Mr Moyhing was a male student nurse undertaking a number of clinical placements as part of his BSc degree at Barts and London NHS Trust.
It had a policy whereby male (but not female) nurses had to be chaperoned during certain intimate procedures on women patients such as performing ECGs which required electrodes to be attached to a patient’s chest area; and doing catheterizations which involved inserting a tube into a patient’s genital area.
Mr Moyhing argued that this resulted in a culture whereby male nurses were treated as second class citizens, and made him feel like a sexual predator. He said this was unlawful discrimination, contrary to section 14 of the Sex Discrimination Act 1975 (SDA).
What does section 14 say?
Section 14 of the SDA says that
(1) It is unlawful, in the case of a woman seeking or undergoing training which would fit her for any employment, for any person who provides, or makes arrangements for the provision of, facilities for such training to discriminate against her –
(a) in the terms on which that person affords her access to any training course or other facilities concerned with such training, or
(b) by refusing or deliberately omitting to afford her such access, or
(c) by terminating her training, or
(d) by subjecting her to any detriment in during the course of her training"
What did the tribunal decide?
The tribunal decided against Mr Moyhing. It said that, as far as the ECG procedure was concerned, there was no like-for-like comparison because touching a woman’s chest was different to touching a man’s. The first was an intimate area whereas the second was not.
It accepted, however, that a requirement to be chaperoned during the procedure could amount to less favourable treatment. In other words, direct discrimination.
But it agreed with the trusts that the differential treatment was to ensure the safety and welfare of both staff and patients.
It concluded, therefore, that Mr Moyhing had not suffered a “detriment” (or disadvantage) by being asked to have a chaperone present when doing an ECG.
With regard to the procedure of catheterization, the tribunal found, as a matter of fact, that female student nurses could not carry out male catheterizations until post graduate level and that he could not have been treated less favourably, at this stage, on the ground of sex.
My Moyhing appealed to the EAT.
What did the EAT decide?
The EAT found in favour of Mr Moyhing.
It confirmed that a detriment is any treatment that a reasonable person would regard as being a disadvantage at work.
The reasonableness of the employer’s policy was just a factor to be considered in determining what a reasonable person would feel.
It said that the tribunal’s approach had the effect of, providing a justification defence in a case of direct discrimination by the back door.
It pointed out that, if a chaperone was not available, a male nurse might not be able to carry out the procedure at all. That would plainly be a detriment. The trust therefore had two options – one was to dispense with chaperones altogether; the other to provide them for everyone.
The EAT sympathized with the position in which their decision put the trust, but said that there was no legal basis for treating male and female nurses differently.
It would be contrary to Parliament’s intentions to “restrict the concept of detriment so as to make good the limited scope of the present justification defence.”
The EAT therefore substituted a finding of unlawful discrimination and awarded Mr Moyhing compensation of £750.