The EAT has held that an NHS Trust discriminated against a male nurse who was required to have a female chaperone present when administering an ECG to a female patient.
Barts and London NHS Trust has a policy, in common with many other NHS Trusts, of requiring male nurses to be accompanied by a female chaperone when administering an ECG to a female patient, because the procedure would involve touching the patient's breasts. This might give rise to unjustified allegations of assault - hence the desirability of a chaperone. No similar requirement exists when a female nurse administers an ECG to a male patient.
The EAT recognised that such a policy was extremely sensible. Nevertheless, upholding the tribunal's decision, it noted that justification cannot be a defence to direct discrimination and therefore the Trust's policy was in breach of the SDA 1975.
It also held (overturning the EAT) that the male nurse, who felt upset and demotivated, had suffered a detriment - and therefore was entitled to compensation. It was an error of law for the tribunal to find that he had not suffered a detriment simply because no reasonable person could have objected to the policy. To find that was to introduce a justification defence by the back door. The test for establishing a detriment is much broader.
Accordingly the nurse's appeal succeeded. The EAT substituted an award for injury to feelings of £750, which it described as "very much at the lower end of the scale."
Moyhing v Barts & London NHS Trust