Offensive material

Case 7: The facts

Miss Spencer brought a claim of sex discrimination in respect of inappropriate remarks made about women and an e-mail, circulated by her manager to both men and women, that contained a picture showing female genitalia.

A tribunal ruled that the circulating of the e-mail did not amount to sex discrimination, because it was addressed to both male and female employees. (This case relates to events that occurred before the SDA was amended to include sexual harassment as a particular claim.)

The ruling

The Employment Appeal Tribunal held that the tribunal had not fully considered the issue. It was incorrect to just say that there could be no sex discrimination because the e-mail was sent to both men and women, because in this case the material itself was sex-specific.

The tribunal should have asked whether a man would have been treated in the same way by comments of a sexual nature about men and by distribution of a picture of male genitalia. If so, there was no discrimination; if it would have been different, there was.

The case was sent back to the tribunal to consider this, and whether the employer had taken reasonable steps to prevent the behaviour complained of.

Spencer v Primetime Recruitment Ltd UKEAT/0445/05