Playing it straight

According to a recent court decision, discrimination because of sexual
preference is as valid as that of discrimination due to gender. Nick Hurley
looks at the issues employers should now consider to ensure that all employees
receive equal treatment

Before the recent case of MacDonald v Ministry of Defence, 2000, IRLR 748,
UK courts had been generally reluctant to extend the protection of the Sex
Discrimination Act 1975 (SDA) to claims of discrimination on the basis of
sexual orientation.

This was demonstrated in the well-known case of Grant v South West Trains,
1998, IRLR 206. In that case South West Trains refused to give a travel pass
providing cheap travel to a (female) homosexual employee’s partner. Grant’s
employer’s policy provided that "privilege tickets" would be granted
to "a married member of staff…" or to "one common law opposite
sex spouse of staff…subject to a statutory declaration being made that a
meaningful relationship has existed for a period of two years or more".
Grant applied for travel concessions for her female partner on the basis of a
"meaningful relationship" for more than two years but the request was
refused.

Grant claimed that the refusal amounted to discrimination because the
concession would have been given to her partner if her partner had been male.
The European Court of Justice however did not accept this. They held that the
condition (that the partner be of the opposite sex) was applied equally to
males and females and therefore was not discriminatory.

This position was confirmed in the more recent case of Pearce v Governing
Body of Mayfield School, 2000, IRLR 548, which was decided just a few months
before MacDonald. In this case the EAT held that homophobic abuse by pupils of
a lesbian teacher did not amount to sex discrimination under the SDA. The claim
failed on the basis that there was no evidence of less favourable treatment on
the grounds of sex, as a male homosexual teacher would have suffered similar
abuse and treatment.

The EAT said that there could be discrimination if the treatment of male and
female homosexuals differed, but in this case the pupils were generally
homophobic, not discriminating as against male and female homosexuals. In light
of both this decision and that in Grant it appeared that the legal position was
very clear – provided an employer was equally intolerant of male and female
homosexuals, a sex discrimination claim would not succeed.

The case of MacDonald has however altered this and broken new ground.
MacDonald was a flight lieutenant who had disclosed his sexuality during an
interview process for a new post, which required special security clearance. He
was asked to resign his commission when his sexuality was revealed, but he refused
to do so and in consequence was dismissed by way of compulsory resignation
under Queen’s Regulation 2905, in March 1997.

MacDonald complained that his dismissal amounted to unlawful sex
discrimination and that he had been subjected to sexual harassment due to the
Ministry of Defence’s vetting process. While the Ministry of Defence admitted
that he was dismissed because of his sexuality, they denied that this amounted
to sex discrimination or that he had been sexually harassed.

The employment tribunal dismissed MacDonald’s claims. However the Scottish
Employment Appeal Tribunal (SEAT) in Edinburgh went against all existing case
law and found that he had been discriminated against on the grounds of his
sexuality and that he had also been subjected to sexual harassment.

In making their decision the SEAT took into account the case of Smith and
Grady v UK, 1999, IRLR 734 in which the European Court of Human Rights decided
that investigations by the Ministry of Defence into the homosexual orientation
of members of the armed forces was a violation of their human rights under
Article 8 (right to respect for private and family life).

Further, the SEAT held that the word "sex" in the SDA was
ambiguous and should be interpreted to include "on grounds of sexual orientation"
as well as meaning "gender". The appropriate comparator therefore
where a homosexual man is claiming discrimination relating to his sexual
orientation, is a heterosexual woman.

This interpretation is contrary to all existing UK case law and while it
remains to be seen how courts and tribunals will interpret this case in the
future, the significance for employers cannot be ignored.

What is the practical effect of this for employers?

Dismissals

The most obvious outcome of this case is that when considering whether to
dismiss an employee, that employee’s sexual orientation cannot be a relevant
factor at any stage. In similar vein, when recruiting, an applicant should not
be rejected on the grounds of their sexual orientation.

Benefits

Benefits that are provided to employees’ heterosexual partners must now also
apply to homosexual partners. For example, in the same situation as Grant, if
the courts follow the case of MacDonald then concessionary travel benefits must
be given to same sex partners if they are given to heterosexual partners. This
would also hold true in respect of other fringe benefits such as medical health
insurance.

Staff training

It would be advisable for employers to revisit their equal opportunities
policy to include the fact that not only will the employer not tolerate
discrimination on the grounds of sexual orientation, but that individuals who
discriminate on the grounds of sexual orientation or treat others less
favourably on these grounds will be subject to disciplinary action.

It is also prudent for managers to be afforded further training on how to
implement the policy properly as there is little benefit to an employer of
having such a policy, if managers are not clear on how it is to be
administered.

Additionally, employers must be wary of taunts about an individual’s sexual
orientation. While such taunts should never be tolerated, what some consider to
be "office banter" may now be not only inappropriate but also lead to
a successful sex discrimination claim. An employer’s harassment policy should
also be reviewed to ensure that harassment based on sexual orientation is
clearly included.

How far does the MacDonald case go?

Since MacDonald goes against all previous UK case law, there may be some
that argue that the case has not been correctly decided. And although the
decision cannot be ignored, it is worth noting that the case is currently being
appealed. It should also be noted that Pearce has appealed the EAT’s decision
and, at the time of writing this article, the case is being heard by the Court
of Appeal. It will be very interesting to see what decision this court will
reach following the MacDonald decision.

Even if MacDonald is overturned and Pearce’s appeal is dismissed, employers
will still have to take steps to prevent discrimination on grounds of sexual
orientation. The EC framework directive for equal treatment in employment gives
the UK until 2003 to implement legislation, which among other things, covers
the prohibition of discrimination based on sexual orientation. So, with or
without MacDonald – or Pearce – employment practices will have to change.

Nick Hurley is a senior solicitor in Charles Russell’s Employment Law
Group

Actions employers need to take

– When recruiting an individual, the sexual orientation of that individual
must have no bearing on whether or not they are selected for interview and/or
ultimately appointed to a position.

– When considering fringe benefits for employees, any benefit that an
employee’s heterosexual partner benefits from must also be given to same-sex
partners.

– Equal opportunity and harassment policies should be revisited to ensure
they cover discrimination on the grounds of sexual orientation and state that any
employee who discriminates on the grounds of sexual orientation will be subject
to the company’s disciplinary procedure.

– Employers should consider what further training might be necessary, not
only to ensure that managers implement the equal opportunities policy
correctly, but also to encourage a change where necessary to prevent
"office banter" relating to sexual orientation and homophobic abuse.

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