Confusion about the law of discrimination on grounds of sexual orientation has recently been dispelled. A controversial Scottish decision 1 concerning discrimination on grounds of sexual orientation has now been overturned by the Scottish Court of Session.
The case concerned a man in the RAF. He was a self-confessed homosexual who had declared this during vetting procedures for a transfer to the Scottish Air Traffic Control Centre (Military) at Prestwick. He was eventually dismissed from the RAF because of his sexuality. He complained of sex discrimination and although this complaint failed in the Employment Tribunal it was upheld by the Employment Appeal Tribunal, to the surprise of some legal commentators.
The EAT decided that the Sex Discrimination Act 1975 applied to sexual orientation as well as to gender. The EAT took the view that when considering a case of discrimination against a homosexual employee, the correct comparator was a heterosexual (of either gender) rather than a homosexual of the opposite gender - an interesting interpretation of the word "sex" in the Act.
Order has been restored by the Court of Session (Scotland’s highest appeal court) which has effectively decided that discrimination on grounds of sexual orientation is not sex discrimination. If a gay man complains of discrimination the proper comparator should be a lesbian. As a homosexual woman would similarly have been dismissed because of homosexuality, the Court of Session reached the conclusion that the complainant had not been discriminated against under the Sex Discrimination Act.
Quite how important this decision will turn out to be is questionable. Followers of EC law developments will know that as a result of the Equal Treatment Framework Directive the UK will be obliged to introduce legislation outlawing discrimination on grounds of sexual orientation by December 2003.
The complainant in this case left service in March 1997 before the Human Rights Act 1998 came into force (2nd October 2000). It is noteworthy that before the appeal to the Court of Session, the MoD conceded that its policy of discharging homosexuals from the armed forces violated the European Convention on Human Rights. However, because the UK Act was not in force at the time, the court decided that the applicant could not take advantage of the Human Rights Act.
Hot on the heels of the Court of Session’s decision, the Court of Appeal in England has had to consider similar issues 2 . Shirley Pearce, a science teacher at Mayfield School, had suffered from homophobic taunts and abuse by pupils who were aware that she was a lesbian.
The EAT decided that she had not suffered from sex discrimination and the case was referred to the Court of Appeal. The Court of Appeal’s decision was at one with the Court of Session’s decision in the armed forces case mentioned above. The abuse suffered by the teacher was because of her sexual orientation. It was not, therefore, sex discrimination within the meaning of the Sex Discrimination Act 1975.
Ms Pearce also relied on the Human Rights Act. Again, her original complaint and the EAT’s decision pre-dated the coming into force of the Act. However, the harassment complained of was capable of being a contravention of the right to respect for private life under the European Convention on Human Rights, when read with the prohibition of discrimination under Article 14 of the Convention. Therefore, had the acts complained of taken place after 2nd October 2000 Ms Pearce might have been able to pursue a claim under the 1998 Act. Human rights complaints can be made against public bodies. A complaint could therefore not be made against the pupils concerned, but arguably could be made against the governors of the school.
These cases also underline the extent to which the Human Rights Act is likely to affect our law in these areas which are so difficult for employers to contend with equitably.
FOOTNOTES
1 Roderick Kenneth William MacDonald v Ministry of Defence [2001] IRLR 431
2 Shirley Phyllis Pearce v Governing Body of Mayfield School LTL 31/07/2001
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