Is It A Straight Discrimination Claim?

For some years now the question of whether sexual orientation comes within the ambit of the Sex Discrimination Act 1975 (SDA) has been a matter of some contention. Generally in case law there has been reluctance to extend the protection of the legislation to claims where the applicant has suffered detrimental treatment on the basis of sexual orientation rather than gender.

Earlier this year in Pearce v The Governing Body of Mayfield Secondary School 2000 ICR 920 the Employment Appeal Tribunal (EAT) held that the homophobic abuse by pupils of a lesbian teacher did not amount to sex discrimination under the SDA. The claim failed on the grounds that there was no evidence of less favourable treatment on the ground of sex as a male homosexual teacher would have suffered similar abusive treatment.

Similarly the European Court of Justice has been reluctant to uphold such claims. In Grant v South West Trains Ltd 1998 IRLR 206, it was confirmed that the policy of awarding travel benefits to an employee’s partner of the opposite sex (but not if of the same sex) did not amount to sex discrimination under the equal pay provisions of the Treaty of Rome. The male comparator would have also been refused the travel benefits in respect of a same sex partner.

The issue was apparently settled until the Employment Appeal Tribunal sitting in Scotland made the brave decision to ignore established precedent and hold that sexual orientation did fall within the ambit of sex discrimination.

In MacDonald v Ministry of Defence 2000 IDS Brief 672, Mr MacDonald had applied for a transfer to a different department within the MOD. He was subjected to a vetting process as part of the MOD’s standard practice in such cases. This process involved his being questioned as to his sexuality and when he admitted to being a homosexual he was forced to answer further personal questions regarding such and was compelled to resign. He brought claims for sex discrimination in relation to his forced resignation and sexual harassment in relation to the questioning.

The EAT held that:

• the meaning of the word "sex" in section 1 (1) of the SDA was ambiguous.

• when interpreting any ambiguous legislation they were bound to do so in such a way as to comply with the European Convention on Human Rights.

• the SDA therefore should be interpreted as also referring to discrimination on the grounds of sexual orientation in order to protect the rights of individuals under the Convention.

In reaching this decision the EAT relied upon two recent decisions of the European Court of Human Rights concerning sexual orientation. Firstly, the Court had held that investigation into the sexual orientation of an employee amounted to a breach of the employee’s right to privacy. Secondly, it had taken the view that discrimination on the grounds of sexual orientation was contrary to the general discrimination provisions contained in the European Convention on Human Rights.

The MacDonald decision itself could be criticised as in neither of the cases referred to was less favourable treatment on the ground of sexual orientation held to amount to actual sex discrimination, which was the subject of Mr MacDonald’s claim. Additionally the EAT’s ruling appears to be in direct conflict with Pearce v Governing Body of Mayfield School (mentioned above), decided just a few months earlier.

We will have to wait to see if this decision will be followed south of the border. Whether or not, the case (reported within weeks of the implementation of the Human Rights Act 1998 compelling Courts and Tribunals to interpret domestic legislation (like the SDA) consistent with the Convention so far as practicable) has brought this issue back to prominence in the already complex field of discrimination issues. It will certainly not be the last we hear on this point. The best practical advice pending further cases must be to assume that MacDonald is correct. This means extending equal opportunities policies and practices to cover homosexuality, educating staff where appropriate, ensuring that instances of homophobic abuse etc are seen to be dealt with under the employer’s disciplinary process and extending benefits to same sex partners if they would be applied to heterosexuals’ partners. Whether or not MacDonald is correct, these will be necessar y steps in due course anyway – the European Anti-discrimination directive received approval last month, giving member states until 2003 by which to implement legislation covering sexual orientation.

STOP PRESS

The draft code of Practice "Use of personal data in employer/employee relationships" was issued by the Data Protection Commissioner last month. It had been hoped that this would provide further guidance in relation to the interpretation of the Telecommunications Lawful Business Regulations, the subject of last month’s Insight. Unfortunately it does not take them into account (indeed, it actively contradicts them in a number of respects), although for the sake of certainty it is hoped that the final version of the Code will do so.