While orientation is excluded from the Sex Discrimination Act, gay staff
claiming bias now have added help in the HRA
The Court of Appeal has recently declared that sexual orientation
discrimination does not fall within the ambit of the Sex Discrimination Act
1975 (the SDA). In Pearce v The Governing Body of Mayfield Secondary School,
IRLR 669/IDS Brief 693, CA, the court decided that a lesbian teacher who
suffered homophobic abuse and harassment on a regular basis from male and
female pupils had not been discriminated against on the ground of sex.
Pearce lost her case in the tribunal and appealed unsuccessfully to the
Employment Appeal Tribunal. In the light of the newly enacted Human Rights Act
(the HRA), she appealed to the Court of Appeal and tried to argue that the duty
upon UK courts and tribunals under the Act to read and give effect to UK
legislation applied retrospectively.
If Pearce’s argument was correct then the court would have to read and give
effect to the SDA in a way which was compatible with her human rights to
respect for her private life (Article 8) as well as the right to enjoy her
human rights without discrimination (Article 14). The court, however, disagreed
with her argument.
In the Court of Appeal, Pearce argued that since the words used were
gender-specific – "dyke" and "lezzie" – they would not have
been directed at a homosexual male and therefore the abuse necessarily amounted
to less favourable treatment on the ground of sex. The court rejected this
argument on the basis that a male homosexual would have been subject to similar
abuse, although differently worded, and therefore Pearce could not claim to
have suffered less favourable treatment.
Pearce further argued that the appropriate comparison under the SDA was not
a male homosexual but a male heterosexual, the key circumstance being Pearce’s
preference for female partners and not her homosexuality.
The court rejected this argument and reaffirmed that the appropriate
comparator in such circumstances will be a homosexual of the opposite sex.
Therefore, if a male homosexual would have been subjected to similar treatment,
then Pearce could not claim to have been treated less favourably on the ground
of sex.
Interestingly, Lady Justice Hale, who delivered the leading judgement in
this case, hinted that, had the homophobic abuse occurred after the coming into
force of the Human Rights Act, then the outcome may have been completely
different. Individuals alleging that a public authority has behaved in a way
which is incompatible with a Convention right contrary to the HRA can bring a
claim under that Act directly against that public authority.
It appears quite possible therefore that public authorities may in future be
held liable under the HRA where their gay employees have been subjected to
homophobic abuse after 2 October 2000.
In spite of the Court of Appeal’s decision in this case, gay and lesbian
employees will perhaps take some comfort from the fact that their long wait for
protection against discrimination on grounds of sexual orientation is almost
over. As a result of the General Framework Directive for Equal Treatment in
Employment and Occ- upation, the Government must introduce such protection by 2
December 2003.
Public-sector employers must respect Convention rights incorporated into the
HRA and act in accordance with them. Commercial organisations will not be
directly affected by the HRA unless they fall within the definition of a public
authority performing public functions.
However, both public and private-sector employers should familiarise
themselves with the provisions of the HRA and review their HR policies and
disciplinary procedures to ensure they comply with human rights legislation.
Specifically, in the light of this case and the Framework directive, employers
should examine their equal opportunities policies and ensure they provide equal
treatment for prospective and current employees – regardless of their sexual
orientation.
By Jason Smith an associate at Palser Grossman solicitors
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