What a shame. It would have been a great story, one almost worthy of the Daily Mail’s front page coverage of it last week. Apparently “sources close to” heavily-pregnant Equality Minister Jo Swinson reported her taking the view that it would have been “sexist” for any of male MPs to offer her his seat rather than letting her stand up in the House of Commons for the thirty minutes of Prime Minister’s Questions (PMQs).
Sadly Ms Swinson moved swiftly to defuse the row (not, as the Mail Online had it, to “diffuse” it, meaning to broadcast, expand, extend or radiate it. That is the Mail’s job). She said that the offer of a seat would have been welcome and “definitely not sexist”. To the Mail’s almost tangible disappointment, common sense is restored.
But, like the Mail, let us not allow our story to be deflected by the mere detail of its not being true. Let us assume that she, or indeed someone in your workforce, did take issue with some minor gallantry by a male colleague and did allege that this was uninvited pregnancy-based conduct with the effect of creating a degrading, humiliating or offensive working environment. Could a discrimination or harassment claim really get off the ground in those circumstances?
We all know that lack of intention to upset is no defence to harassment claims. We know also that the question of upset is a very subjective one, and that there is a small minority of people (irrespective or race, gender, religion, disability or pregnancy) who can find discriminatory offence in almost anything once they put their mind to it. We know also, however, that s26(4) Equality Act 2010 can rule out reliance on conduct which it is not reasonable to regard as having that degrading, etc. effect, so surely that is an end of the matter?
Not necessarily. It probably boils down to how it is done, and to other issues of context. A lot of noisy fussing and insisting regardless of the woman’s protestations could be well be seen as stereotyping her publicly as unfit, feeble and prone to an attack of the vapours at any moment. This would be just as open to challenge as an employer’s decision not to discuss important matters with an employee about to go on maternity leave “for fear of upsetting her”. Well-intended indeed, but clearly less favourable treatment on pregnancy grounds. However, it is hard to see that it would be found reasonable to regard as offensive or condescending in this way a lower-key offer, especially if the environment were hot, noisy or crowded (the floor of the House of Commons at PMQs, for example), and especially if the pregnancy is clearly at an advanced stage. As the Employment Appeal Tribunal very sensibly said in Heafield, the intention behind an act must clearly be relevant to the offence which can reasonably be taken from it. On that basis, even if the lady in question did bristle at the man’s presumption for some reason, no harassment claim should surely succeed.
On 5th June 2013 we wrote a post about the death of chivalry in the workplace . Ms Swinson’s rapid disowning of her “sources” might have been a genuine reflection of her view or might had been the sudden realisation that she was about to set back the cause of sex equality by some decades. In either case, it does suggest that we were perhaps a little pessimistic. If you would previously have offered your seat to a pregnant colleague or Cabinet Minister, do not let this tawdry little attempt to create front page news from nothing put you off.