Indiscriminate comments
Spencer v Primetime Recruitment Limited, EAT 2 March 2006
Background
Miss Spencer worked for Primetime between June and August 2004. During that time, inappropriate remarks were made by some of Spencer’s male colleagues about women’s outfits and appearances. These remarks were made indiscriminately in front of all employees, men and women.
In August, Spencer’s manager circulated an e-mail to all employees within the office, including a picture showing the genitalia of two naked women. Spencer was upset both by the e-mail and the comments.
After Spencer had left her employment, she sent a letter to Primetime setting out her complaints concerning the behaviour of her colleagues. She subsequently brought a tribunal claim of unlawful sex discrimination on the basis that these instances of mistreatment were because of her sex.
In the tribunal’s view, Spencer was not discriminated against on grounds of her sex – the comments were “indiscriminate” in that her colleagues made them regardless of who was present. Similarly, the e-mail was circulated to all office staff, male and female. The tribunal found that Spencer was treated exactly the same as her male colleagues even though the effect it had on her was different, and her claim failed. Spencer appealed.
Decision
The appeal was allowed. The Employment Appeal Tribunal (EAT) said that although the offending acts had been directed indiscriminately at all staff in the office, it did not follow that the conduct could not be discriminatory.
The tribunal had failed to address the sex-specific nature of the remarks and e-mail and who might be offended by them. The matter was sent back for further consideration.
Comment
Spencer’s complaint was one of direct sex discrimination – a man discriminates against a woman if he treats her less favourably than he would treat a man.
Note that since October 2005, a specific definition of harassment (sex-based and sexual harassment) has been added to the Sex Discrimination Act 1975 – a woman is subjected to harassment where, on the grounds of her sex, she suffers unwanted conduct that has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
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