Veitch Penny LLP - Exeter | Crediton, Devon

Case

Moonsar v Fiveways Express Transport Limited
Employment Appeal Tribunal - (27 September 2004)

Issues

(1) Discrimination
(2) Conduct amounting to sex discrimination
(3) Compensation

Facts

Ms Moonsar was employed as a data entry clerk from 21st July 2003 until her dismissal on grounds of redundancy on 6th October 2003. She worked for Fiveways part-time, during the evenings, as she had a full-time day job.

Following her redundancy she made a complaint to the Employment Tribunal that she had suffered both sex and race discrimination. The complaint of sex discrimination related to three incidents where male members of staff had downloaded pornographic images in the office in which she was working. Although the images were not viewed by her she was working closely with them and was aware of what they were doing. She considered the behaviour to be unacceptable but decided not to make a complaint at the time because she valued her job and had decided to “keep her head down”. She did not complain after the third incident because it occurred just before her employment ended.

Her complaint of race discrimination arose out of her dismissal. She alleged that she had been selected for redundancy ahead of a white employee who had been working at the company for a shorter period of time.

In connection with the complaint of sex discrimination the Tribunal took account of the fact that Ms Moonsar had not viewed the images and had not complained about them being viewed in her presence. It concluded that this conduct could not amount to discrimination by way of sexual harassment. With respect to the complaint of race discrimination, the Tribunal found that there had been discrimination but only to the extent that she could not work again for a courier company in that area. The Tribunal found that she had been able to continue in her day job and had found alternative work. Her award was therefore limited to £1,000.00 for injury to feelings.

Ms Moonsar appealed against the decisions arguing that the facts of the case did amount to sex discrimination and that the race discrimination which she had suffered was sufficient to warrant an award in excess of £1,000.00.

Decision

The appeal would be allowed in part.

1. The Employment Appeal Tribunal (EAT) confirmed that the behaviour of the male employees did, viewed objectively, have the potential effect of causing offence to a female employee working in close proximity. As such this could be regarded as degrading or offensive to an employee as a woman and was sufficient to constitute less favourable treatment.

The EAT noted that the failure of Ms Moonsar to complain at the time did not provide a defence for the employer. It was up to the employer to show that there had not been any less favourable treatment and in this case this did not occur because the employer had not defended the complaint. Accordingly, the Tribunal’s decision would be substituted by a finding of sexual discrimination. The matter was remitted back to the Tribunal for an award to be made.

2. The EAT confirmed the Tribunal had been entitled to make the award of compensation for race discrimination that it had. The award was not outside the reasonable band of awards that a Tribunal could make in the particular circumstances of the case. Whilst it was accepted that it was on the low side, the Tribunal had given reasons for that decision and in particular why the injury to feelings award had been limited. Accordingly, the award would not be interfered with.

Comments

This case highlights the type of behaviour which can lead to a finding of discrimination. The rational for the decision here was that the downloading of pornography in the presence of a woman amounted to prima facie discrimination. Once this is established, the burden of proof therefore shifts to the employer to demonstrate that the conduct was not discriminatory. As the employer had not defended the proceedings, this could not be established. This case emphasises the importance of employers having properly drafted procedures in place (and enforced) so that they are able to successfully defend any such claim.