Sex discrimination: Chaperoning arrangements
Tina Elliott of Capsticks provides guidance on chaperoning arrangements following a recent Employment Appeal Tribunal decision.
In Moyhing v Barts and London NHS Trust EAT/0085/06 Andrew Moyhing was a student nurse. It was a requirement of his course that he undertake clinical placements. During his degree, he was placed at a number of hospitals to practice or observe clinical procedures.
Mr Moyhing originally claimed sex discrimination against five separate NHS bodies. His employment tribunal claim proceeded against two NHS Trusts and he was unsuccessful against both. He appealed the decision in relation to only one respondent, Barts and London NHS Trust. He raised two grounds of appeal and succeeded on one.
Mr Moyhing said that he was subjected to differential treatment because he was informed that he should be chaperoned while performing an electro-cardiogram (ECG) on a female patient, whereas a female student nurse did not require a chaperone while she performed an ECG on a male patient. Similarly, he alleged that he had been told that he would not be allowed to participate in female catheterisations, whereas a female student would be allowed to participate in male catheterisations. The Trust denied that Mr Moyhing had been given this information on catheterisations, which would have conflicted with its policy on the matter.
On the catheterisation issue, the EAT found no grounds to criticise the tribunal's decision to prefer the Trust's evidence and Mr Moyhing failed on this point.
On the ECG issue, it was established that the Trust's policy required a student nurse of either sex to be supervised by a registered nurse when carrying out an ECG. The Trust maintained that chaperoning was unnecessary when a female nurse was carrying out an ECG on a male patient, as this was not regarded as an intimate procedure. However, when a male nurse was carrying out an ECG on a female patient, the Trust believed that this amounted to an intimate procedure because of the possibility of contact with the patient's breasts. The Trust had, therefore, required Mr Moyhing to be chaperoned when he carried out an ECG on an elderly female patient who was experiencing breathing difficulties.
The legal issues
The Sex Discrimination Act 1975, section 14 protects those undergoing vocational training from discrimination. Therefore, student nurses may bring a claim for discrimination in relation to treatment received during their training placements.
In this case, requiring a male student to be chaperoned amounted to less favourable treatment compared with that which would be afforded to a female student, who would not have required a chaperone. This difference in treatment related to sex and, therefore, amounted to direct sex discrimination. This meant that, unlike in claims for indirect sex discrimination, there could be no justification defence even if there was a good reason for the difference in treatment. The EAT found that the Trust's policy, in requiring Mr Moyhing to be chaperoned, gave rise to a detriment. It was not possible to rely on the reasons behind the policy being cogent or rational as this would have the effect of introducing a justification defence by the 'back door'.
The EAT said that, even if the policy was justified, it was not unreasonable for a male nurse to find it 'demeaning and irritating' to have to be chaperoned. The test, therefore, as to whether or not a person has suffered a detriment is whether or not his or her treatment is of such a kind that a reasonable worker or student may take the view that in all the circumstances it is to his or her detriment. The EAT decided that compensation should be very much at the lower end of the scale because the discrimination was not personally directed at Mr Moyhing; it did not involve a personal slur on his reputation or character and he was only marginally inconvenienced by it. It therefore made a compensatory award of only £750.
It is worth noting that the EAT said that it sympathised with the dilemma that its decision created for NHS Trusts that have adopted similar policies for good and objective reasons. However, unless Parliament makes a specific exemption in the sex discrimination legislation, the EAT has no legal basis for allowing this difference in treatment between male and female student nurses.
Chaperoning arrangements
There is no doubt that the decision in this case could present operational difficulties for healthcare providers. The statistic considered in Moyhing was that around 90% of nurses are female. It may not, therefore, be easy to find a male chaperone when a female nurse needs to carry out an intimate procedure on a male patient.
However, Trusts should review their chaperoning polices to ensure that there are no gender differences that might give rise to a detriment. Trusts clearly cannot dispense with chaperoning and they may find it impractical to offer a chaperone every time an intimate procedure is carried out. The solution that is most likely to be adopted is for Trusts to place the decision in the hands of the patient as to whether or not he or she requires a chaperone or consents to the procedure taking place in the absence of a chaperone. The patient's decision can then be recorded in his or her notes.
However, Trusts should check the wording of chaperoning polices and polices relating to patients' privacy and dignity to ensure that they are gender neutral and that staff are trained in the procedures that should be followed.
Circumstances may arise where a chaperone is not readily available and this may present a delay that is not beneficial to the patient. In such a case, the clinician will need to exercise his or her own judgment in the patient's interests. However, as the law currently stands, a risk of detriment will remain if, for example, a male student nurse is not then allowed to be involved with that procedure. Without a change in the law, it may be difficult to eliminate this risk completely; Trusts should therefore ensure that, when a student has missed out on an element of training for these reasons, arrangements are made for participation or observation of the same procedure on another occasion.
The author: Tina Elliott has been a solicitor for over 20 years and specialises in employment law. In the last few years Tina has concentrated on advising clients involved in healthcare in both the public and private sector and acted on behalf of three of the NHS Trusts in this case.
Capsticks is the
Further information on Capsticks can be accessed at www.capsticks.com
