In a word – ‘no’.
Oops sorry, I need to hedge a bit. In two words – ‘probably not’
The issue arises because of a letter sent to the Guardian by a number of prominent human rights and equality lawyers in support of the campaign against the so-called ‘lads mag’. This has of course been picked up and widely reported. It’s an ideal slow news day story. Nothing has actually happened as such. No-one is claiming discrimination (yet) and a court has not been asked to rule on the point. However a group of lawyers writing a letter is enough of an excuse to have a heated debate about political correctness, so off we go. It seems, for example that Toby Young disagrees with the campaign. Who would have guessed?
I cannot stress enough that I take no position on the campaign behind the letter. Arguments on both sides I’m sure, but I’m keen to stay well clear of that one.
My interest is in the legal proposition that requiring employees to handle these products may be unlawful because it amounts to harassment – either of employees or of the customers who come into the shop.
We should first of all reflect on what a bold proposition that is. The campaign is suggesting that the act of selling these legal products in a retail environment may in itself be unlawful. That would be a surprising position for the law to take don’t you think? It’s the sort of conclusion that I think the courts would only reach if they felt the law absolutely compelled them to do so.
Harassment is defined in S.26 of the Equality Act 2010 as ‘unwanted conduct related to a protected characteristic’ which has the purpose or effect of violating an individual’s dignity or ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’ for that individual.
Let’s accept for the purpose of this argument that working in a place where these magazines are displayed does indeed create the sort of environment that S.26 covers. We would still have to show that employees were subjected to unwanted conduct which was related to their sex.
Suppose the manager of a shop instructs a female member of staff to fill the shelves with copies of a magazine with an objectionable cover. The member of staff may not want to be given that instruction and so the conduct might be said to be ‘unwanted’ but on the other hand it is well within the scope of the contract. Can an instruction to perform a duty mandated by the contract you have entered into be ‘unwanted’ in the sense meant by S.26? And, in any event, can we say that the instruction is in itself related to sex? Presumably the manager would give the same instruction to any member of staff regardless of gender. Could the nature of the material be enough to make the instruction ‘related to’ sex?
Even if we accept this argument, it seems unlikely that employees in newsagents would be at the front of the Employment Tribunal queue. What about the bar staff in a lap-dancing club or employees in a sex shop? Surely there are thousands of employees who are subjected to images and attitudes far worse than those displayed on the front of these magazines? Why focus on ‘mainstream’ retail? What difference does being ‘mainstream’ make to somebody’s rights at work?
Ultimately, the question is not what the lawyers writing this letter think of these arguments but what the judges of the ET, EAT, Court of Appeal and – ultimately – the Supreme Court think (if only Lord Sumption were on Twitter, we could ask him!)
On balance I would be astounded if the courts agreed that an employer was harassing its staff or customers purely by putting these products on sale.
More harm than good
As an academic exercise, it is possible to formulate all sorts of potential discrimination claims based on common employment practices. But these hypothetical cases can only become real if an actual employee brings a claim. The case is then decided not on some abstract basis but with the facts of a particular case in mind.
Do we have any evidence of employees actually feeling upset or humiliated? If an employee gets dismissed for refusing to handle issues of Zoo magazine then I’ll happily cheer her case on – and I’m sure that one of the letter’s signatories would be delighted to represent her on a pro-bono basis. But until the case actually arises I don’t think it’s helpful to frame an abstract argument.
We need discrimination law to protect real people from serious ill-treatment. The problem with arguments such as those put forward in this letter is that they feed into the ‘political correctness gone mad’ and ‘you can’t do anything these days’ narrative that is used to undermine support for discrimination law generally. I don’t think it’s a good idea to add fuel to that fire.
I take no position on just how objectionable these magazines are, I am completely neutral on the campaign against them. What I do object to, however, is roping in a spurious (or at least, highly speculative) discrimination argument to give weight to that campaign on a slow news day. I think it does more harm than good.