A male nurse has won a sexual discrimination case in which he claimed an NHS trust was enforcing gender stereotypes by insisting on different chaperoning policies for male and female nurses.
Andrew Mohying was told that a female member of staff would have to chaperone him during training while he used an ECG machine on a female patient, although female staff were allowed to provide intimate care to male patients with no chaperone present.
A previous tribunal had supported Barts and London NHS Trust’s chaperoning policy, which was common across many NHS trusts, because allowing an unchaperoned male nurse to treat a female patient could lead to unjustified allegations of assault.
But although the Employment Appeal Tribunal recognised that the policy was sensible, it said that, legally, justification cannot be a defence to direct discrimination. It awarded Mr Moyhing £750 for injury to feelings, which he has refused to accept saying he did not want to take resources away from the NHS.
Mr Mohying argued that although he accepted the principle of patient choice, it was unlawful to disadvantage him when applying that principle. Although he had completed his studies he had left the profession because of his concerns about the treatment of male nurses.
Speaking after the hearing, Mr Moyhing said: “I hope that the NHS will look at its policies on the chaperoning of male nurses and develop them in the light of this judgment.”
Jenny Watson, chair of the Equal Opportunities Commission, which supported Mr Moyhing’s case, said: “Sex discrimination is wrong, whether it is directed at women or men.
“The Employment Appeal Tribunal was right to find that it was not acceptable to have a chaperoning policy based on lazy stereotyping about the risks to patients and assumptions that all men are sexual predators, and this judgement should help to ensure that such prejudices become a thing of the past.
“The women and men who work so hard in our hospitals are professionals and deserve to be treated as such. This type of discrimination against men based on misconceptions about their behaviour does nothing to help ensure patient safety.”
In addition, Ms Watson also pointed out that the case covered many of the issues that will be addressed by new equality legislation due to come into force in April 2007.
The Equality Act includes a gender equality duty that requires public bodies, including those in the healthcare sector, to eliminate unlawful discrimination and take active steps towards equality in their employment, recruitment and training practices.
In the past, change has largely been dependent on individuals bringing cases, but from April a proactive approach will be a legal requirement.
This means that public bodies will have to design employment and services to meet the differing needs of men and women. The duty also applies to the voluntary and private sector if they are acting in a public capacity.
Some of the things that your organisation may need to consider are:
- Whether it collects information about the proportions of men and women using its services. Are these proportions taken into account when developing new policies?
- Are the staff responsible for policy development clear on what gender equality is and how to incorporate it into their planning?
- Have you taken steps to promote a gender balance at all levels in the workforce? What about equal pay?
