This week’s case round up: discrimination and sexual orientation

MacDonald v Ministry of Defence, IDS Brief 672, EAT

The Sex Discrimination Act 1975 prohibits discrimination on the grounds of a person’s sex and, until this decision, "sex" had 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 asked numerous personal questions and 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 the 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 that 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.

Determining 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. In assessing that sum the tribunal took into account a number of specific factors; Rule’s age, the fact that she was the most junior employee of the company while Hadjou was the most senior and the period of time over which the harassment lasted, nine months.

Interestingly, the tribunal commented that had the harassment occurred between two employees of a similar level the award to injury to feelings would have been £15,000. The additional sum specifically reflected Hadjou’s breach of trust and abuse of position of authority.

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