The Employment Appeal Tribunal in Moyhing v Barts & London NHS Trust has held that an NHS Trust discriminated against a male nurse who was required to have a female colleague present when administering an ECG to a female patient.
Barts & London NHS Trust has a policy, in common with many other NHS Trusts, of requiring male nurses to be accompanied by a female chaperone when administering an ECG to a female patient, because the procedure would involve touching the patient's breasts. This might give rise to unjustified allegations of assault - hence the desirability of a chaperone. No similar requirement exists when a female nurse administers an ECG to a male patient.
The Employment Appeal Tribunal recognised that such a policy was extremely sensible. Nevertheless, upholding the original tribunal's decision, it noted that justification cannot be a defence to direct discrimination and therefore the Trust's policy was in breach of the Sex Discrimination Act 1975.
It also held that the male nurse, who felt upset and demotivated, had suffered a detriment and was therefore entitled to compensation. Accordingly the nurse's appeal succeeded. The Employment Appeal Tribunal substituted an award for injury to feelings of £750, which it described as "very much at the lower end of the scale."