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.
Defining Harassment
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.
A Range of Reasonable Responses 
Hmm. I wouldn’t be quite so confident, especially as Aileen McColgan is against you. Your analysis does not include section 26(2) of the Equality Act, dealing with conduct of a sexual nature. For this claim, it is not necessary to show that the conduct is related to sex. See also Moonsar v Fiveways.
Thanks for commenting.
I respect Aileen’s expertise as much as anyone, but I’m sure she wouldn’t claim to be an objective analyst on issues like this. Let’s judge the arguments, not look at who is making them.
As for the ‘conduct of a sexual nature’ point, my whole argument is that selling these products (legal as they are) is not related to sex. It is also quite clearly not conduct of a sexual nature.
As for the case you cite, that of course involves the distribution of pornography among colleagues. The employee knew of it although it was not directed at her. I think that is quite different from being asked to work in a place where these magazines are sold. A workplace where colleagues share pornography with each other would clearly have a very different atmosphere from a shop that happens to sell ‘lad’s mags’.
Of course given that no one has actually made a complaint yet we have no way of telling. we can only really analyse the point when we have an actual situation to look at. It’s all rather vague and academic at this stage – which is sort of my point.
I cited Moonsar for the point of law that discrimination need not be on the grounds of sex rather than because its facts are similar to the issue discussed here. They are not. As for the conduct not being of a sexual nature, I am sceptical to say the least.
I do not agree that the lack of a real case should prevent the issue from being discussed. In the absence of an ECHR which actually does anything, it is increasingly becoming the role of charities and campaigning organisations to take the mantle.
Moreover, it is incredibly common for free speech obsessives to make tenuous legal arguments based on the Human Rights Act to support their cause. It is surely not impermissible for arguments to be publically aired in opposition, especially when the people using them have at least taken the trouble of getting a legal opinion to support them, which is more than more than the free speechers usually have done.
I know where Toby Young is coming from though. I have produced a fantastic self-published magazine called “Incoherent Free Speech Ramblings” but, amazingly, my local newsagents all refuse to stock it, using the flimsy excuse that no-one would be interested in buying it. How dare they restrict my freedom of speech in this way!
In all seriousness, I do actually agree that such magazines are largely harmless fun and I would not support the wider aims of the campaign. On this narrow issue, however, I think that they do have a point. People should have the right to watch unpleasant things like slasher movies, BNP propaganda and Made in Chelsea but I would ask them please not to make me watch them as well.
In think a real killer for their case is that there has been consistent “work somewhere else” attitude in the case law when the complained of behavior has related to the job, such as Christians complaining about work on Sunday. Given Lad’s Mags are a staple of small news agents you could make an analogy to a Muslim working in a abattoir that processed pork.
There is a substantial difference between porn being passed around an office or workshop and working for a company whose business in part deals with softcore porn.
The comparison with religious discrimination simply does not work because these cases were brought on the basis of indirect discrimination, for which objective justification is possible. This allows much wider considerations to be taken into account than for harassment.
Nor could a suggestion that the conduct is unwanted be defeated by looking at the contract. The test for whether the conduct is unwanted is a purely subjective one.
In my view, section 26(2)(a) of the Equality Act (unwanted conduct of a sexual nature) is simply a slam dunk in this situation.
However, there is a way out, one that does not make it look like employment lawyers do not really understand the law or are interpreting it in a ‘political’ way. This derives from section 26(2)(b) of the Act. Just because conduct is of a sexual nature does not necessarily mean that it violates a person’s dignity or creates a hostile environment (see in particular paragraph 22 of Richmond Pharmacology v Dhaliwal). Because this is partly an objective test (see section 26(4) of the Act), it would be possible to take other matters into account, such as the scope of the contract and the doubtless vast social utility of Lads’ Mags.
Darren is right to note that any case would necessarily turn on its facts. I personally would not advise complacency on the part of any employer around this issue. If an employee wants to conscientiously object to handling the magazines, I would advise letting her do so. If you are not persuaded by my legal analysis, just do it because it is a nice thing to do.
I am very glad that this debate has been raised. I think that it is a very interesting issue.
Pingback: Lose the Lads Mags, revisited | It's Just A Hobby
Pingback: Dangerous Dolls: ‘Object’ and Lose the Lads’ Mags | plasticdollheads
I’m not a lawyer but wouldn’t a successful case open a can of worms – in effect allowing employees to pick and choose which magazines they are prepared to handle? A male Muslim employee might object to a picture of a woman in a swimsuit on the cover of, say, Vogue, an evangelical Protestant object to the Catholic Herald and so on. It would become impossible to operate a newsagents or magazine retailing business. Don’t the courts often shy away from judgements that seem to follow from the facts and the law precisely because they have wider and undesirable consequences?