Sex Discrimination or Not?

When is sex discrimination not sex discrimination? See what you think.

A lady was employed as a cleaner. The cleaning department was managed by a man.

Skiving is apparently an Old Norse term for cutting leather but most of us recognise the expression as meaning not working when you should be. In some workplaces skiving in the toilets is a familiar practice.

Anyway, the cleaner was in the women’s toilet apparently waiting for a cubicle to become free. Her male manager had a poor opinion of the lady cleaner and believed that she was skiving. So what he did was to march into the toilets and roared “you’ll not hide in here”. The lady cleaner said in response, perhaps not surprisingly, “you shouldn’t be in here” to which he replied that he could go anywhere in the factory, at which point he left.

Now the question is, does the male manager’s behaviour amount to sex discrimination? The cleaner thought it did and made a complaint to an employment tribunal. They agreed with her and found that she had been discriminated against. They awarded her £1750 for injury to her feelings.

The company appealed to the Employment Appeal Tribunal. They said that in deciding whether her manager’s behaviour amounted to discrimination you had to consider whether a robust female manager would have treated a male cleaner she thought was skiving in the same way.

They concluded that a male cleaner would have been treated the same way as the female cleaner and so there was no discrimination and so therefore the lady cleaner lost her £1750.

Is it right or is it wrong? To my way of thinking, the manager was probably ill advised to march into the ladies’ toilets but was it discrimination, no!