By Stephen Jackson, head of the employment law team at Harding Evans Solicitors

How harassed would you feel if your colleagues downloaded porn in the office? The Courts say that if men download porn in the office with a woman in the room this is not just indiscreet, but it is sexual harassment, even if the woman does not complain about it.

The facts in a recent case before the Employment Appeal Tribunal were as described. Mrs Moonsar worked as a clerk for Fiveways Express Transport Limited in the evenings. On just three occasions, some male members of staff downloaded pornographic images onto screens in the room where they were all working. The images were not sent to Mrs Moonsar, nor was she asked to look at the images. But she did work in close proximity and was aware of what was happening.

The Tribunal which first heard the complaint decided, particularly as she had not complained and she had suffered no detriment, that there was no sex discrimination. However, the Appeal Tribunal held that the fact that Mrs Moonsar did not complain at the time was irrelevant. It was said that this behaviour would “clearly be regarded as degrading or offensive to a woman working in those circumstances”. The employer would therefore be liable for sexual harassment by the male employees of Mrs Moonsar.

However there is a possible defence. An employer could show that a woman had not in fact suffered any detriment, for example, if she was party to the downloading of the images or actually enjoyed what was going on. But where a woman eventually complains to a Tribunal, proving enjoyment may often be difficult.

More interestingly, pause for a moment to consider the wider implications of the decision. The Employment Appeal Tribunal apparently did not consider the nature of the material downloaded. Could Mrs Moonsar have complained if the images were of gay sex? Presumably such images would be equally offensive to a woman.

In these modern times, much more is likely to depend upon cultural and religious upbringing than on a person’s sex. The assumption (stereotypical, perhaps?) is that a man would not have been as offended as a woman. If correct, can men not complain about the behaviour of their colleagues if they find the downloading of pornographic images offensive or is it only women who can complain of discrimination?
Would it make any difference if the images were of straight or gay sex? Would not a typical straight man be likely to find the downloading of gay pornography as offensive as a woman might find the downloading of straight pornography? And how does that fit in with the concept of equality in relation to sexuality? The answer is it doesn’t.

Whatever your views in relation to this issue, the only safe conclusion is that wherever there is overt reference to sex or sexual imagery in the workplace, a worker (whether or not an employee) is likely to be able to frame a claim of unlawful discrimination against the business.

Wise employers will now be reviewing their computer and internet policies and their discrimination policies and training. In essence, employers cannot safely afford to tolerate downloading of any images or materials which employees might find offensive.