SEX discrimination law is often seen as the main route by which women can achieve equality with men in the workplace. However, occasionally it is used successfully by a man objecting to discriminatory practices which cause distress and inconvenience.
A Mr Moyhing objected to the practice adopted by Barts and the London NHS Trust whereby male student nurses are required to be chaperoned in circumstances where female nurses would not be. The situations he brought to the court involved carrying out ECGs and catheterisation on female patients. He said that he felt like a second-class citizen and it was implied that he might be a sexual predator.
The trust accepted that the practice amounted to sex discrimination and that it had no objective justification for it. However, it presented two arguments to the Employment Appeal Tribunal to resist the case. The first was that as a necessary part of discrimination law Mr Moyhing had to prove that he had suffered some detriment as a result of the discrimination. The trust argued that he was still able to carry out the procedures in question, albeit with a chaperone present, and therefore he had suffered no detriment. This argument had been successful in a lower court.
The second argument concerned the effect of a judgment against the trust. The trust said that either it would have to stop providing chaperones where male nurses were providing intimate treatment to female patients, or it would have to provide chaperones to female nurses in circumstances where there was no perceived need for them and at great extra cost.
The Court considered the law under the Sex Discrimination Act, and found that there was a detriment to Mr Moyning even if he was simply distressed and upset by the situation he found himself in. It would also be the case that chaperones would not always be available, which would prevent male nurses carrying out certain procedures. The court thought it an exaggeration to say that he was considered to be a sexual predator, but his upset was worth £750 in damages.
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The court accepted the difficult practical situation the trust then found itself in and the potential additional expense if chaperones were to be provided for all nurses. However, the court felt that Parliament would have to make a particular exception to the Sex Discrimination Act if it felt this was appropriate to address the trust’s concerns.
The case will have been watched closely by all NHS bodies and other organisations where male practitioners can find themselves alone with female patients or service users. It will be interesting to see if the Government brings forward amending legislation as discussed in the judgment.
Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers. E-mail: s.cragg@doughtystreet.co.uk