In a recent case, Moonsar v Fiveways Express Transport Ltd, the Employment Appeal Tribunal (EAT) emphasised an important point; that it will amount to unlawful sex discrimination if a man downloads pornography at work whilst a woman is present in the room.

The exception, which one cannot imagine is going to be of much use to employers, is where the woman participated in, or enjoyed, the downloading.

Initially, the tribunal rejected Ms Moonsar's claim. Its view was that although male colleagues had on three occasions downloaded pornographic images on to a computer in the room in which she was working, there was no discrimination because the images were not sent directly to her (although she knew what was going on) and because she had not complained at the time upon the basis that she valued her job and wanted to "keep her head down".

The tribunal disagreed. It said that it did not matter that the pornography was not actually directed towards Ms Moonsar. Her colleagues' actions led to an atmosphere of intimidation and clearly amounted to an affront to her dignity and, although she had not complained at the time, there was specific evidence that she had found the goings-on unacceptable.

It followed from this that downloading and displaying pornographic images where they could be seen by a woman amounted to less favourable treatment for the purposes of the sex discrimination legislation. In this case, the employer was unable to demonstrate that Ms Moonsar had participated in the downloading or had enjoyed looking at the images obtained. On that basis, a finding of unlawful discrimination was made.

This case reinforces the consequences of failing to adhere to what should now be standard practice in each and every workplace in the land. Pornography - be it in electronic media or in more traditional forms such as calendars or posters - has no place at work. Employers cannot wait for female staff to complain before removing and banning it. They need to have clear guidelines and leave their staff in no uncertainty as to the likely consequences of breaching the rules.

Stephen Elliott is a solicitor in the employment team of North-East law firm Ward Hadaway. He can be contacted on 0191-204 4000 or by email at stephen.elliott@wardhadaway.com

Published: 02/11/2004