Moonsar v Fiveways Express Transport Ltd, EAT

Out of sight, out of mind?

In the office where Ms Moonsar worked as a data entry clerk, several male colleagues downloaded pornographic images from the internet. Although they were not circulated to her, she worked in close proximity and was aware of what was happening. She did not complain at the time, later explaining that she valued her job and did not want to cause trouble. Shortly afterwards, she was selected for redundancy.

In addition to a (successful) race discrimination claim in connection with her unfair selection for redundancy, Moonsar claimed sexual harassment in respect of the pornographic material. The tribunal rejected this claim, saying they were influenced by the fact that Moonsar had not complained at the time about others viewing such images in her presence.

Moonsar successfully appealed. The Employment Appeal Tribunal (EAT) clarified that in such cases, the potential for offence by being exposed to pornographic images is obvious. Once a complaint had been made, the burden of proof transferred to the employer to disprove that she had suffered a detriment.

The EAT was unimpressed by arguments that she should have complained at the time, and that there was no harassment because the images were not actually sent to her. The fact that she was nearby and aware of what was happening was sufficient to amount to harassment, and the employer had failed to show that Ms Moonsar had not been affected.

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