Macdonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) (Scotland), Pearce (Appellant) v. Governing Body of Mayfield School (Respondents)
109. These errors have led to further errors of reasoning in relation to the making of the necessary comparison and in the application of s.5(3). The complainant is a homosexual being treated in the same way as any other homosexual would have been treated by the relevant person. The common factor is homosexuality, being attracted to members of the same sex as oneself. The argument of the appellants has attempted to discard the common factor and, by redefining it, construct another in order to contradict it. A homosexual man is not the same as a heterosexual woman and it is surprising that the argument that he was should have persuaded anyone.
110. The last point I wish to emphasise is the introduction of the phrase "sexual harassment" into the discussion of the 1975 Act. This expression has since become relevant to later legislation and has had its inherent ambiguity resolved by definition as explained by my noble and learned friend Lord Nicholls. But the phrase does not occur in the 1975 Act. The requirement remains that there is conduct of the person in question which treats the complainant, on grounds of her sex, less favourably than that person would have treated a man in the same circumstances. Harassment of any kind is deplorable. But to give rise to a complaint under the 1975 Act it has to be discriminatory and on the ground of her sex. In some situations the bare facts may speak for themselves and admit of only one conclusion, for example a male employer demanding sexual favours from female employees in return for continued employment. But the vast majority of contested cases will not be so straightforward. The harassment may merely be the selection of the most effective weapon by a bully to achieve some non-sexual objective. The comparison test must be satisfied and dicta which state or suggest the contrary are wrong. It is, further, an error to try to use the 1975 Act for the purpose of enforcing ordinary contractual rights. The real complaint of Shirley Pearce is that she was not provided with the protection and support which any teacher was (in her submission) entitled to expect from his or her employer. It is not improved by trying to convert it into a claim for sex discrimination. There was no discrimination. The persons harassing her were not her employers but the pupils she had to try and teach. They were harassing her not because of her sex but because of her sexual orientation.
111. It follows from what I have said that both these claims had to fail and the appeals should be dismissed.
LORD SCOTT OF FOSCOTE
112. I have had the advantage of reading in advance the opinions of my noble and learned friends, Lord Nicholls of Birkenhead, Lord Hope of Craighead and Lord Rodger of Earlsferry, in which the facts of these two cases are so fully set out and the issues so comprehensively analysed that any repetition would be needless. I gratefully adopt their exposition. I agree with my noble and learned friends that for the reasons they have given each of these appeals should be dismissed. The three main issues addressed are, however, so basic and important in determining the correct approach to discrimination cases that I think I should, in brief, express in my own words my conclusions on those issues.
113. The first issue is whether an allegation of discrimination on the ground of sexual orientation is, ipso facto, an allegation of discrimination on the ground of sex. Dr Robert Wintermute in his article referred to by Lord Hope in paragraph 30 of his opinion has argued that it is. Hale LJ in her judgment in Pearce  ICR 198 agreed with Dr Wintermute's analysis. The argument is, in skeletal form, as follows:
It is argued that if statements 1 and 2 are correct, the conclusion in 3 must inevitably follow.
114. The argument is, in my opinion, fallacious. The fallacy, as Lord Nicholls has pointed out, is produced by an unjustifiable re-writing of the reason for the dismissal. A homosexual is a person who is sexually attracted to those of the same sex as himself or herself. In statement 1 the reason for the dismissal is the employee's homosexuality. The reason would apply indiscriminately to men or to women. It is a gender neutral reason. To treat the homosexuality reason as being gender specific is to treat it as something that it is not. The 1975 Act bars gender specific discrimination: discrimination on the ground of sex. It does not address discrimination on the gender neutral ground of sexual orientation.
115. Accordingly, in my opinion, neither Mr Macdonald nor Ms Pearce can claim a remedy under the 1975 Act on the ground that he or she has suffered detriment because of his or her sexual orientation.
116. The second issue relates to sexual harassment. Each of these appellants claims to have been subjected to harassment of a gender specific character. In Mr Macdonald's case he was asked highly intrusive, in my opinion unnecessarily and unpardonably intrusive, questions about his homosexual activities. In Ms Pearce's case she was subjected by some of the pupils at her school to taunts and insults of a sexually explicit character. I would be prepared to assume that in each case the appellant suffered what could reasonably be described as sexual harassment.
117. But the 1975 Act is an Act to combat discrimination. It is not an Act to combat harassment. Discrimination must always be of the essence of a complaint under the 1975 Act, or under any of the other anti-discrimination Acts. Discrimination always involves a comparison between the treatment meted out to the complainant and the treatment that would have been meted out to a person in similar circumstances to those of the complainant save that he or she was not a member of the protected class.
118. So it was not enough for Mr Macdonald to show that he had been subjected to sexual harassment by the officer who had questioned him about his homosexuality. He needed also to establish that a woman, in the like position to his own ie. a homosexual officer in the Royal Air Force, would not have been subjected to comparable harassment. The evidence before the employment tribunal failed to do so (see paragraph 47 of Lord Hope's opinion). In short, Mr Macdonald established that he had suffered sexual harassment but failed to establish that he had suffered sexual discrimination.
119. Ms Pearce's case, too, stumbles at the same hurdle. I would accept that she established that she had been the victim of sexual harassment. But she accepted that a homosexual male teacher would have suffered comparable taunts and insults (see paragraph 8 of Lord Nicholls' opinion). And, more important, there was no evidence that the school authorities would have acted any differently if comparable complaints had been made by a homosexual male teacher. In short, Ms Pearce failed to prove the all-important discrimination.
120. The third issue, which is relevant only to Ms Pearce's case, relates to the responsibility of the school for the behaviour of those pupils who had subjected Ms Pearce to the taunts and insults. This is not a case in which the school can be held vicariously liable. Section 41 of the 1975 Act imposes vicarious liability on an employer for things done by an employee or an agent. Pupils, vis à vis their school, are neither.121.
Burton v De Vere Hotels Ltd  ICR 1 has been taken as authority for the proposition that if an employer could have controlled whether the discriminatory conduct of others took place or not, the employer should be taken to have subjected the victim of the conduct to that conduct. The case involved alleged racial discrimination, not sex discrimination, but there is no difference so far as this point is concerned between the 1975 Act and the Race Relations Act 1976.
122. In my opinion Burton was wrongly decided. It overlooked the all-important need to establish discrimination. The case involved two black waitresses in whose presence a professional entertainer at the restaurant made a number of racially offensive remarks and sexually offensive innuendoes. The waitresses' employers, the proprietors of the restaurant, did nothing to intervene and put a stop to this offensive performance nor did they withdraw the waitresses from the scene. They were held liable on a complaint made by the waitresses under the 1976 Act. But there was nothing to show that the employers would have behaved any differently if the butts of the entertainer's offensive humour had been white waitresses, or black men, or white men.
123. These two appeals demonstrate the importance, in my opinion, when dealing with complaints under the 1975 Act and the other anti-discrimination Acts, of keeping in mind that they are intended to combat discrimination. They are anti-discrimination statutes. Absent discrimination, objectionable conduct by employers must be countered by other means than complaints under these Acts.
124. I would dismiss these appeals.
LORD RODGER OF EARLSFERRY
125. The two appeals before the House raise overlapping issues as to the interpretation and application of sections 1(1)(a) and 5(3) of the Sex Discrimination Act 1975 ("the 1975 Act"). It is therefore convenient to deal with them together. In the form which it took at the relevant times section 1(1)(a) provides:
By section 2 the provision also applies in the case of alleged discrimination against a man and is then to be read with the necessary modifications. So far as relevant, section 5(3) provides:
126. For the purposes of the appeal from the Extra Division of the Court of Session in Macdonald v Advocate General for Scotland 2002 SC 1;  ICR 174 I gratefully adopt the account of the facts and issues in the speech of my noble and learned friend, Lord Hope of Craighead. I can therefore turn straightaway to the facts and issues in the second appeal.
Pearce v Governing Body of Mayfield School
127. In 1975 the appellant, Ms Pearce, began work as a science teacher in the inner city comprehensive school in Portsmouth which was managed by the respondent. The school had a roll of about 1500 pupils whose ages ranged initially from 12 to 16 and, from the mid-1990s, from 11 to 16. From about 1991 onwards pupils subjected Ms Pearce to a sustained campaign of verbal abuse. The children shouted out the words "lesbian", "lemon", "lezzie" and "lesbian shit". They also made or shouted out derogatory comments about lesbians. These comments were either directed at Ms Pearce or were in any event made in her presence. She reported the first incident to the deputy head teacher, Mrs Millard, who thereafter proceeded on the (correct) basis that Ms Pearce was a lesbian.
128. After the first incident Ms Pearce reported no others until 1992 although her position is that they occurred on a regular basis. In 1992 she reported two incidents in her classroom and four outside of school, one of them involving a group of children gathered outside her house on a Saturday evening. After Ms Pearce reported that incident Mrs Millard spoke to three named pupils with the result that she had no further problems with them. Although, according to Ms Pearce, verbal abuse continued in the school corridors, she reported no further incidents in 1993. In the spring and summer of 1994 there were incidents involving verbal abuse in the classroom, in school corridors and, on one occasion, from three named boys at a bus stop. Between September and November 1994 there were various incidents at school in which pupils called Ms Pearce a "lesbian" or some variant of that description. On one occasion a pupil asked her if she thought lesbians should be prosecuted. The pupil subsequently apologised. On another occasion a boy challenged Ms Pearce when she reported him for making comments in class about her being a lesbian and asking her whether she was married.
129. In November 1994 Ms Pearce told Mrs Millard that she had become ill with stress because the school was not taking effective action to protect and support her. Immediately thereafter, on 23 November 1994, she was absent from school, suffering from depression and stress. On 28 November Ms Pearce complained to Mrs Millard about two pupils who had verbally abused her before she took sick leave. Following a letter from the Lesbian and Gay Employment Rights organisation Mrs Millard saw the pupils concerned on 10 January 1995. The day before, Ms Pearce was invited to a meeting with the headmaster. The meeting eventually took place on 30 January 1995. The headmaster had not prepared himself properly and was interested only in Ms Pearce's return to work: he suggested that she should "grit her teeth" and that she could "run away again" if she found it too difficult. He also suggested that the topic of homophobia could be introduced into school assemblies under the discussion of "differences". The headmaster appeared to be unwilling to give a specific undertaking that by a particular date he would have tackled the question of homophobia either in assembly or in any way that was based on the school as a whole.
130. Ms Pearce returned to work on 27 February 1995 but two days later, on 1 March, pupils in one of her classes repeatedly shouted out the word "pussy" and made comments about the smell of fish and cat food. At the end of the afternoon Ms Pearce found an opened tin of cat food in her jacket pocket. The pupil concerned was punished with a five-day exclusion and no further incidents of that kind occurred. There were incidents of verbal abuse in school classes, corridors and on the sports ground during March, April and May. Ms Pearce felt isolated and unsupported. On 16 May 1995 her head of department suggested that she might be better off looking for a new job or carrying out supply teaching. From the following day Ms Pearce was absent from work suffering from depression. In December 1995 she submitted an application for ill-health retirement which was accepted on 30 April 1996 and took effect from 16 May 1996. Thereafter on 17 July 1996 Ms Pearce wrote to the respondent and on 13 November the chairman replied: "I admire your courage in being so open about your situation but surely you must have known that in making your position known publicly you risked comments and, such is the world, possibly even abuse, from both adults and children."
131. On 17 March 1997 Ms Pearce presented an originating application to the employment tribunal under the 1975 Act. She sought compensation from the respondent on the ground that they were in breach, specifically, of sections 1(1)(a) and 6(2)(b) of the 1975 Act by failing to prevent the act (sic) of harassment (by the pupils). On 8 July a tribunal chairman held that it was not just and equitable to hear the complaint out of time but on 26 October 1998 the Employment Appeal Tribunal ("the EAT") allowed Ms Pearce's appeal and remitted the matter to the tribunal for a full hearing. In giving the decision of the EAT, His Honour Judge Clark said:
132. In addition to the facts that I have already narrated, the employment tribunal found that the school dealt with each incident which Ms Pearce drew to their attention by seeing any named pupils. The school appeared, however, to shrug their shoulders at those incidents where she could not name the pupils concerned. Moreover, the school allowed the problem to continue over an unacceptable time. They also failed to take any action which involved the whole school rather than just individually named pupils and they failed to offer adequate support to Ms Pearce either by changing her classes or by offering practical support in the way that she handled her lessons.
133. One of the teachers and the headmaster gave two reasons for not taking specific steps. The first was difficulties over section 2A of the Local Government Act 1986, as amended by section 28 of the Local Government Act 1988, which prohibited a local authority from promoting a homosexual lifestyle. The other was that they did not want to put specific matters into the school's equal opportunities policy and wanted "a holistic approach". The employment tribunal found both of these reasons to be unsatisfactory. Section 28 did not prevent a school from outlawing homophobic abuse, while the suggestion that the school did not want to list specific matters in their equal opportunities policy flew in the face of the fact that the policy already contained a list, mentioning age, gender, ability and ethnic origin. There seemed to the tribunal to be no reason not to include homophobia, which was clearly a current problem at the school. The tribunal also had doubts about the headmaster's suggestion that the topic of homophobia could be introduced in the school assemblies under the discussion of "differences" since the discussion of differences had already taken place in brief sessions led by the pupils themselves raising questions.
134. Counsel for Ms Pearce submitted to the tribunal that, because all the abuse (apart from the 1 March 1995 incident) referred to her as a lesbian, and since the terms of abuse were apt only for a woman and not for a man, the incidents of abuse were gender-specific and therefore amounted ipso facto to discrimination on the ground of her sex, in the sense of gender. The tool of abuse was used, in part at least, because Ms Pearce was a woman: Strathclyde Regional Council v Porcelli 1986 SC 137;  ICR 564. Counsel for Ms Pearce further argued that the school were directly responsible for sex discrimination because of their failure to deal properly with the pupils' abuse in circumstances where the school had the necessary control: Burton v De Vere Hotels Ltd  ICR 1. Counsel for the respondent argued, by contrast, that the pupils harassed Ms Pearce not on the basis of her sex but on the basis of her sexual orientation or perceived sexual orientation as a female homosexual. In any event the school would not have been responsible for any sex discrimination on the part of the pupils.
135. The employment tribunal concluded that Ms Pearce had been subjected to discrimination on the ground of her sex in the incident on 1 March 1995. Paragraphs 80 and 81 of their extended reasons dealt with this particular incident:
136. The tribunal went on in paragraphs 84 to 86 to deal with the remainder of the incidents and held that they did not constitute discrimination on the ground of Ms Pearce's gender:
137. With the (possible) exception of the incident on 1 March 1995, the tribunal therefore required to dismiss Ms Pearce's application for compensation from the respondent. Since the pupils had not discriminated against her on the ground of her sex, as opposed to her sexuality, in terms of section 6(2)(b) of the 1975 Act the respondent could not have "subjected" her to any detriment which amounted to sex discrimination in the form of sexual harassment by the pupils. In respect of the 1 March 1995 incident the tribunal found that the school had reacted promptly. They saw and appropriately punished the pupils concerned: the pupil who put the cat food in Ms Pearce's pocket was suspended for five days and the other pupils were seen. The action taken was appropriate and the pupil who was suspended caused no further trouble during the short time before Ms Pearce stopped teaching at the school. The tribunal concluded that, since the school had acted promptly and supported Ms Pearce, they were not directly responsible for any sex discrimination constituted by the actings of the pupils on this occasion. Ms Pearce has not challenged that conclusion.
138. So far as the remainder of the incidents were concerned, however, the tribunal concluded that, if they had required to make a finding about the school's actions concerning them, they would have found that they had not taken appropriate steps and were therefore directly responsible for sex discrimination.
139. Ms Pearce appealed to the EAT which dismissed her appeal:  ICR 920. They held that all the abuse, including the 1 March 1995 incident, had been homophobic and not on the ground of Ms Pearce's sex. They further held that the tribunal had erred in law in holding that the school would have been liable for the acts of the pupils. The EAT held in particular that, before finding that the school had subjected Ms Pearce to discrimination, the tribunal would not only have had to identify the steps which the school had failed to take but would also have had to conclude that those steps could have prevented or reduced the discrimination. Although the employment tribunal had identified steps which the school should have taken, they had failed to find that those steps could have prevented or reduced the extent of the harassment.
140. Since Ms Pearce no longer contends that the respondent should be held liable for the incident on 1 March 1995, it is unnecessary to decide whether, as the EAT considered,  ICR 920, 931 - 932, paras 11 - 13, that incident was better seen as part of the pattern of abuse based on her sexual orientation rather than as an isolated incident of sex discrimination. I find it hard, however, to see why on this one occasion the pupils concerned should have targeted Ms Pearce simply because she was a woman rather than because she was a lesbian. I should therefore incline to accept the EAT's conclusion on this point.
141. Ms Pearce appealed but again the Court of Appeal rejected her appeal:  EWCA Civ 1347;  ICR 198. She argued that the pupils' treatment of her was on the ground of her sex because, but for her gender, she would not have been subjected to the particular vulgar abuse in question. Ms Pearce also argued that, in any event, even if the verbal abuse was on the ground of her sexual orientation, the pupils still treated her in that way because she was a woman since a man who was attracted to women would not have been treated in the same way. The Court of Appeal held that they were bound by Smith v Gardner Merchant Ltd  ICR 134 and refused the appeal. Judge and Henry LJJ also agreed with the EAT that the employment tribunal had been wrong to find that the school would have been liable if the acts of the pupils had constituted sex discrimination. Hale LJ held that, if she had not been bound by Smith v Gardner Merchant Ltd, she would have held that sexuality was an irrelevant circumstance for the purpose of the comparison required by section 5(3) of the 1975 Act. She would also not have interfered with the employment tribunal's obiter conclusion on the liability of the school.
142. In her appeal to this House Ms Pearce accepted that the 1975 Act applied only to discrimination on the ground of gender and not to discrimination on the ground of sexual orientation. She submitted, however, that in certain situations both discrimination on the ground of gender and discrimination on the ground of sexual orientation were to be found. It was therefore wrong to proceed on the footing that treatment was necessarily based either on the ground of sex or on the ground of sexuality: a tribunal had to consider whether the treatment was on the ground of sex even if it was (also) on the ground of sexuality. In the present case, even although the tribunal had found that, with the exception of the incident on 1 March 1995, the pupils had abused Ms Pearce on the ground of her sexuality, they should also have held that the pupils had discriminated against her on the ground of her sex. Two possible ways of reaching that conclusion were canvassed in the first two issues in the appeal.
143. Under the first issue Mr Emmerson QC adopted the reasoning of Lord Prosser in his dissenting opinion in Macdonald v Ministry of Defence  ICR 174. On a proper analysis it could be seen that the pupils had abused Ms Pearce because she was a woman who was attracted to women. They would not have similarly abused a male teacher who was attracted to women. So, in terms of section 1(1)(a) of the 1975 Act, the pupils had treated her less favourably than a heterosexual man in the same circumstances. For the respondent Ms Booth QC submitted that this approach was flawed. The employment tribunal had found that the pupils had abused Ms Pearce because of her sexuality rather than her gender and furthermore that all the indications were that they would have directed equivalent abuse at a male homosexual teacher. The comparison with a homosexual teacher was the correct one for the purposes of section 1(1)(a): the fact that the pupils would not have abused a heterosexual male teacher was accordingly irrelevant.