Porn and Pensions
Two new EAT cases today: one on porn, one on pensions. No prizes for guessing which will have the highest click-through rate!
The EAT has held that it amounts to sex discrimination for men to download porn in the office, if there is a woman in the room, unless the woman has participated in, or enjoyed, the downloading.
It overturned a tribunal decision that there was no discrimination on grounds of sex because the woman employee had not complained at the time.
Applying the Barton v Investec Guidelines, the EAT held that downloading porn in a place where it could be seen by a woman gave rise to a prima facie case of less favourable treatment (by affecting the woman's dignity and creating an intimidating atmosphere). This shifts the burden of proof onto the employer to establish a non-discriminatory reason, such as the woman was party to, or enjoyed, what was going on.
On the facts of the case, the employer had been debarred from defending, so the shifting of the burden of proof meant that the EAT substituted a finding of sex discrimination.
Moonsar v Fiveways Express
Calculating Pensions Losses
Last year, a committee of employment tribunal chairmen developed the 3rd edition of the Employment Tribunal: Compensation for Loss of Pension Rights booklet (see bulletin 21/11/03).
This booklet replaced the much-criticised 2nd edition, published in 1992.
The Employment Appeal Tribunal has held that it is an error of law for a tribunal to adopt the pension loss calculations set out in the Guidelines if the parties have their own credible evidence relating to pension losses. The Guidelines, say the EAT, are a fall-back position only if the parties do not have their own evidence, or if their own evidence is not credible.
Port of Tilbury v Birch