Sexual discrimination can now apply to gays

An EAT decision this month gives an idea of how the Human Rights Act is likely to affect employment claims

One area in which the Human Rights Act is sure to make its mark is discrimination on the grounds of sexual orientation.

What is the current legal position? Is it unlawful for an employer to treat individuals unfavourably (for instance, by paying them less or allowing them to be harassed) because they are homosexual?

No, said the English Employment Appeal Tribunal recently in Jones v ICS Cleaning. A male employee who complained he was harassed because of his perceived sexual orientation had to show that a female employee perceived to be a lesbian would not have been subjected to the same treatment. Only then could he say he had been discriminated against, contrary to the Sex Discrimination Act 1975, on the grounds of his sex rather than his sexual orientation.

This, the “equality of misery” reasoning, was adopted in the earlier decision in Smith v Gardner Merchant, in which the EAT held that a gay barman could succeed in a harassment claim under the SDA only if he could show a lesbian would not have been subjected to such treatment.

So, it seems, if all gay staff, male and female, are treated equally badly, they have not suffered sex discrimination and so have no remedy under domestic (or European Community) law.

From 2 October, however, when the HRA came into force, public sector employers have to pay regard to the European Convention human right to respect for private and family life. So, indirectly, will employers in the private sector, because tribunals will have to interpret laws such as the SDA to give effect to that right so far as possible. Gay staff will therefore be in a much stronger position to challenge discriminatory treatment.

The decision of the Scottish EAT in O’Neill v Ministry of Defence earlier this month gives a taster of the effect the HRA is likely to have on some employment claims. Although the ruling was decided before the new Act actually came into force (by a matter of days), the judge used case law of the European Court of Human Rights to turn existing domestic law on its head.

He decided that as the meaning of the word “sex” is ambiguous it must be interpreted in line with the meaning given to it by European human rights law, which says that the term does cover sexual orientation. He held that the word “sex” in the SDA should therefore be interpreted likewise, meaning that homosexual workers can use the SDA to sue their employers for any bias they suffer in the workplace.

This decision will no doubt be heavily criticised by lawyers. Any other decision, however, would have been plainly unfair, particularly bearing in mind its proximity to the entry into force of the HRA. Had the applicant, a member of the armed forces who was fired for being gay, taken his case directly to the European Court of Human Rights, he would have won. Others have done so before him, and have indeed forced a change in the MOD’s policy on gays in the military. Why should he lose in the UK courts just because our law is out of touch with European human rights law?

Controversial as the decision of the EAT may be, it is a reminder that employees who wish to challenge practices they consider discriminate against them as homosexuals are now more heavily armed to do so.

It is also a taster of how the introduction of human rights arguments into tribunal cases will lead to some unpredictable and challenging decisions in the coming months and years.

Sexual orientation discrimination may now be covered by the SDA.

In any event, since 2 October courts and tribunals have to interpret discrimination laws so as to be compatible with the European Convention on Human Rights.

This is likely to lead to some boundary-breaking decisions.