Re-orientating sex bias law

Sex discrimination re-interpreted to include sexual orientation as well as
gender. We look at this, plus cases on compensation for harassment, individual
rights under Tupe and reduction in pay without consent

Discrimination and sexual orientation
MacDonald v Ministry of Defence
IDS Brief 672, EAT

Under the Sex Discrimination Act 1975, "sex" had always been
interpreted to mean gender not sexual orientation. MacDonald was an officer
cadet in the RAF and, after applying for a transfer, underwent a vetting
procedure during which he confirmed he was homosexual. He was forced to resign
because of the MoD’s policy preventing homosexuals from serving in the armed
forces. MacDonald brought claims of sex discrimination and sexual harassment
(because of personal questioning). The tribunal dismissed his claim because
sexual orientation did not come within the scope of the SDA. MacDonald
successfully appealed.

Because the SDA was ambiguous about whether it encompassed sexual
orientation, the EAT held it should be interpreted in such a way as to be
compatible with provisions under the European Convention on Human Rights. It
took into account recent decisions of the ECHR where it was held MoD
investigations into the personal lives of homosexual service personnel violated
Article 8, the right to private life. MacDonald was treated less favourably
because of his sexuality.

Compensation for harassment
Rule v Specialised Promotions & Hadjou
EOR Digest 45, ET

Rule, aged 19, worked as an administrative assistant. The managing director,
Hadjou, was married to the owner of the company and began pestering and
sexually harassing Rule shortly after her employment commenced. This culminated
in a sexual assault following which Rule resigned and successfully claimed sex
discrimination. She was awarded compensation of £24,000 which included £20,000
for injury to feelings. The tribunal took into account a number of factors: Rule’s
age, the fact she was the most junior employee while Hadjou was the most
senior, and the nine-month period over which the harassment lasted. The
tribunal said had the harassment occurred between employees of a similar level
the award would have been £15,000. The additional sum reflected Hadjou’s breach
of trust and abuse of authority.

Dismissal connected with transfer
Taylor v Connex South Eastern
IDS Brief 670, EAT

After BR’s privatisation in 1996, Taylor’s contract transferred to CSE
pursuant to the Tupe regulations. Because they failed to agree new contract
terms Taylor’s employment continued under the BR terms. In 1998, CSE proposed
further terms but Taylor refused them because they were less favourable. He was
then dismissed.

The tribunal held that although the dispute related to the BR terms, this
was no longer a "live issue" connected with the transfer. About 250
staff had accepted the terms proposed to Taylor and they had no dispute with
CSE. The dismissal was for "some other substantial reason" and was
reasonable in the circumstances.

Taylor successfully appealed. The regulations give rise to individual
rights. Although most of the employees had accepted the terms, Taylor had not
and this meant he was still in dispute with CSE about the original BR terms, an
issue directly connected with the transfer, regardless of the time that had
elapsed. His dismissal was automatically unfair and the issue of reasonableness
was irrelevant.

Reduction in pay unlawful
Davies & others v M J Wyatt (Decorators)
IDS Brief 670, EAT

Davies was originally classed as self-employed by MJW and received no paid
holidays, but this changed when he became an employee. MJW funded the paid
holidays by setting up a "holiday scheme" whereby it deducted £20 a
week from employees’ wages and, in turn, paid them £40 a day for 15 days’
holiday and eight public holidays. In October 1998, the Working Time
Regulations introduced the right to paid annual leave of 15 days. To fund this,
MJW unilaterally reduced the hourly rate of pay by 30p in return for four
weeks’ paid holidays.

The claim for unauthorised deduction of wages was unsuccessful. The tribunal
held the reduced hourly rate was the sum "properly payable" to the
men and the regulations effectively meant MJW was paying twice for holidays;
firstly through its holiday scheme and secondly by giving paid annual leave.
However, the EAT held the tribunal had erred in law. MJW could not unilaterally
reduce pay without consent to fund its obligation to provide paid annual leave
and ordered MJW to repay the deductions. Had both parties consented to a
variation of the contract, the situation would have been different.

Knowledge of protected act required
Ledeatte v London Borough of Tower Hamlets
IRLB 649, EAT

In 1994, Ledeatte brought a race discrimination claim against the authority.
In 1997 she complained of victimisation for three incidents concerning the
personnel department: she had been wrongly informed she could not carry forward
holiday, she had returned from maternity leave to a different position, and no
salary was paid while on sick leave. The tribunal held that any one of the
incidents could constitute victimisation but dismissed the claim because there
was no evidence that any of the individuals involved knew of Ledeatte’s earlier
race claim. Ledeatte appealed, arguing that as the personnel manager was aware
of the race claim, it could be inferred that the three individuals also knew of
it. But the EAT accepted the authority’s submission that there had to be proven
actual knowledge of the race claim to establish the necessary causal link.

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