Discrimination Act ruled to include sexual orientation

Landmark Scottish case supports right of homosexuals to complain of unfavourable treatment by employers.

In a ground-breaking decision, the Scottish EAT in MacDonald v Ministry of Defence (2000) has ruled that the Sex Discrimination Act 1975 does cover discrimination on grounds of sexual orientation.

MacDonald joined the Intelligence Corps (Territorial Army) in May 1986. He enlisted as an officer cadet in the RAF and served at RAF Aldergrove. However, the events that led to his complaint of sex discrimination against the Ministry of Defence arose after he applied for a transfer to the Scottish Air Traffic Control Centre at Prestwick on compassionate grounds.

As part of the transfer vetting process, he was asked whether he was a homosexual, to which he agreed. In the course of the vetting process, he was subject to vigorous questioning about his sexuality. Subsequently, MacDonald alleged that this questioning amounted to a form of sexual harassment. The upshot was that he was eventually compelled to resign under the Queen’s Regulation 2905. He complained of sex discrimination.

The employment tribunal dismissed MacDonald’s complaint on the grounds that although his dismissal may have contravened the European Convention on Human Rights, it was not in breach of the Sex Discrimination Act in the light of the Court of Appeal’s 1998 ruling in Smith v Gardner Merchant. In that case, the Court of Appeal had confirmed that in general terms the SDA did not cover discrimination on grounds of sexual orientation. Furthermore, the tribunal did not consider that the European Court of Human Rights’ ruling earlier this year in Smith & Grady (in which the court had declared the Government’s prohibition on homosexuals serving in the armed forced to be contrary to the European Convention) to have altered the law as far as the Sex Discrimination Act was concerned.

EAT decision

Allowing the appeal, the EAT ruled:

  • The meaning of the word "sex" in section 1(1)(a) of the Sex Discrimination Act 1975 was ambiguous. In the light of recent decisions by the European Court Human Rights as well as cases in Canada, Australia and the US, the word "sex" in the SDA should be interpreted to include "on grounds of sexual orientation;

  • The correct comparator for determining whether a homosexual has suffered "less favourable" treatment for the purpose of proving a case of direct discrimination is a heterosexual of the opposite gender;

  • There is no need for a comparator where the nature of the conduct is both sexually related and blatantly unacceptable because the facts will speak for themselves.

The Scottish EAT’s decision is the latest in a long line of recent decisions on this point. It remains to be seen whether the Scottish EAT’s ruling is followed in England and Wales because it conflicts with the EAT’s ruling in Pearce v Governing Body of Mayfield School earlier this year. There remain difficulties in applying the concepts of sex discrimination to discrimination on grounds of sexual orientation, not least section 5(2) and (3) of the SDA which appear to suggest that for the purpose of the comparison the "relevant circumstances" should be the same. Nonetheless, the EAT is of course correct in observing that the law does not stand still, particularly in the light of the recent implementation of the Human Rights Act 1998.

Key points

  • Discrimination on grounds of sexual orientation may well now be covered by the Sex Discrimination Act 1975;

  • Homosexuals will be entitled to complain of sex discrimination if they are treated less favourably than a heterosexual comparator of the same sex.

  • The EU has recently agreed that all member states should legislate to making it unlawful to discriminate on grounds of sexual orientation by 2003.

By Anthony Korn, a barrister at 199 Strand Chambers

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