Macdonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) (Scotland), Pearce (Appellant) v. Governing Body of Mayfield School (Respondents)
62. As it is, the fact that the policy was directed against homosexuals because of their sexual orientation and not because of their gender has the effect of driving the argument in his case a different direction. The fact that the policy applied to all service personnel irrespective of their gender, with the result that homosexual men and women were treated equally, removes from the case another possible ground on which it might have been said that there was unlawful discrimination on the ground of the person's sex. Differences between the treatment of men and women in the implementation of that policy might have justified a claim that there was discrimination on the ground of the person's sex, but that it not this case. The evidence is that the policy applied to men and women in the same way. The fact that homosexual men and women were both treated in the same way does not, of course, exclude the possibility that they were nevertheless discriminated against on the ground of their sex. But the argument that this was so becomes much more difficult. If it is to succeed, Mr Macdonald must be able to show that the appropriate comparator against whom his case that he was treated unfairly on the ground of his sex was a woman whose sexual orientation was different from his. He has to show that his case is to be compared not just with that of a woman but with a woman who was a heterosexual.
63. The argument that the appropriate comparator is a heterosexual woman was examined by David Pannick, Sex Discrimination Law (1985), p 210-211. As he pointed out, one's conclusion on the validity of the claim depends on the classification of the problem and the precise comparison one adopts. He suggested that the complainant could argue that an employer who dismissed a male homosexual from his employment because he had a rule that he would employ neither men nor women who had sexual preferences for their own sex had discriminated against them because he was treating differently two employees, one male and one female, who were sexually attached to the same actual or hypothetical male employee. The problem, he said, was that the 1975 Act provided no criterion of relevance.
64. I do not, with respect, accept that the 1975 Act provides no criterion by reference to which one may judge the relevance of the circumstances used to identify the appropriate comparator. Section 5(3) states that a comparison of the cases of persons of different sex must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. It envisages only one comparator. The sex of the comparator must, of course, be different. But, if the relevant circumstances are to be same or not materially different, all characteristics of the complainant which are relevant to the way his case was dealt with must be found also in the comparator. They do not have to be precisely the same. But they must not be materially different.
65. What then is the test which one must apply in order to judge what is relevant and what is material? The answer lies in the context which is set for this exercise by the words used in section 1(1)(a). As Lord Goff of Chieveley put it in James v Eastleigh Borough Council  2 AC 751, 774C-D, the issue is whether the complainant would have received the same treatment from the employer "but for her sex". A person discriminates against a woman unlawfully on this ground if he treats her less favourably than he treats or would treat a man. If one is applying this test (the "but for" test), one can ignore circumstances which have no bearing at all on the way the woman was treated. If the treatment related entirely to things done at the workplace, for example, one can ignore things which the comparator does at home. But one cannot ignore things which have a direct bearing on, or are used to explain why, the woman was treated differently from a man. As Lord Caplan put it, the critical circumstance is the circumstance which led the employer to treat the woman differently. If this was because the woman was left handed, for example, the same characteristic must be found in the comparator. A right handed man would not be an appropriate comparator. This is because section 5(3) tells us that the relevant circumstances must be the same. That is the basic rule, if one is to compare like with like. One can ignore characteristics that have no bearing on the way the woman was treated. But those that do have a bearing on the way she was treated must be the same if one is to determine whether, but for her sex, she would have been treated differently.
66. This reasoning suggests that there is no escape from the conclusion that the appropriate comparator where the reason for the treatment was the woman's homosexuality is a man who shares the same distinct characteristic - a man who like her is a homosexual. All one has to do where a man is the claimant is reverse the genders. The characteristic of homosexuality, which is the critical circumstance, remains the same. Of course, this proposition invites the objection that, as soon as that choice is made, it defeats the argument that the claimant was discriminated against on the ground of his sex. It has been described as the equal misery rule, because it will usually mean that homosexuals of either sex are left without a remedy. But it is the fact that it is discrimination on the ground of sex, and of sex only, that the 1975 Act makes unlawful that creates the misery, not the choice of the comparator. Until the Disability Discrimination Act 1995 was enacted, for example, there was no protection against discrimination on the ground of a person's disability. It could be said that all disabled persons were in a state of equal misery because there was no statutory protection against discrimination against them unless could be shown that they were treated differently on the ground of their sex contrary to the 1975 Act or on racial grounds contrary to the Race Relations Act 1976. They had no protection if they were discriminated against on the ground only of their disability. The flaw lies in the piecemeal way in which the legislation has approached the problem of inequality.
The competing arguments
67. The issue is too important however to arrive at a decision on this point without considering the competing arguments in more detail.
68. The principal argument against the view that in a case of sexual orientation the appropriate comparator is a person who, like the claimant, is also a homosexual is that which Dr Robert Wintermute advanced in his article "Recognising New Kinds of Direct Sex Discrimination: Transexualism, Sexual Orientation and Dress Codes"  60 MLR 334; see also Lesbian and Gay Inequality 2000: the Potential of the Human Rights Act 1998 and the Need for an Equality Act 2002:  EHRLR 603. In Mr Macdonald's case Lord Prosser agreed with his reasoning: 2001 SC 1, 12, paras 32-33. In Smith v Gardner Merchant Ltd  ICR 134, 149 Ward LJ rejected it. In Ms Pearce's case  ICR 198 Hale LJ, in a powerfully argued judgment, made clear her regret at being driven to the same conclusion as that reached by the majority in Smith v Gardner Merchant Ltd because the decision in that case was binding upon her. As she acknowledged at p 203, para 7, the source of the argument which she favoured was Dr Wintemute. So it is worth setting out in full the relevant passage in his article.
69. What Dr Wintemute said was this  60 MLR 332, 347:
70. There is much in this passage with which I agree. I agree that, for a valid sex discrimination analysis, the comparison must change only the sex of the complaining individual and must hold all the other circumstances constant. The objections to the employer's choice of the comparator which it attributes to the woman with the required university degree and to the man wanting to be nurse make perfect sense. They are matched by the example which I gave in para 21 of the left handed woman. But the key to the whole argument is Dr Wintemute's proposition that, in the example which he gives of the man with a male partner, the correct thing to do is to change the sex of the man only and not that of his partner. What this does, in effect, is to break the rule which he himself has recognised, namely that for a valid sex discrimination analysis the comparison must change only the sex of the complaining individual. It does not only change the sex of the complaining individual. It changes his sexual orientation too. The woman with whom his case is compared is a woman with a different sexual orientation from his. She is attracted to persons of the opposite sex, while he is attracted to persons of the same sex. So analysed, the proposition breaks the rule which section 5(3) lays down that the cases of the man and the woman must be the same.
71. Dr Wintemute seeks to avoid this breach by diverting attention from the comparator to the comparator's partner. There may, of course, be cases where the reason why a male claimant has been treated differently is indeed because of his attachment to a particular man and not because of his sexual orientation generally. But that is not what the argument is really about, and it is certainly not so in the cases of Mr Macdonald and Ms Pearce. At the time of Mr Macdonald's dismissal paragraph 1032(1) of the Queen's Regulations stated: "Homosexuality, whether male or female, is considered incompatible with service in the Armed Forces." The effect of this statement was that the gender of the individual was irrelevant. The policy applied equally to either sex. If one is driven to accept that the reason why the man was treated differently was that he was sexually attracted to members of the same sex, as we are in Mr Macdonald' case by the terms of the armed forces' policy, one must attribute the same characteristic to the comparator. It was not the fact that he had a particular partner that led to Mr Macdonald's dismissal. It was the fact that he admitted to the interviewing officer that he was a homosexual. I do not see how, as Hale LJ suggested in Ms Pearce's case  ICR 198, 208, para 22, one can reject the claimant's sexual orientation as irrelevant for the purpose of identifying the comparator. Mr Macdonald's sexual orientation was the critical factor in this case that led to his being dismissed. In Ms Pearce's case it was the critical factor that led to the abuse which she received, both in words and behaviour. Their sexual orientation was plainly one of relevant circumstances which, if the rule laid down by section 5(3) is followed, must be same in the case of their comparators. That was the view taken by Judge LJ in Ms Pearce's case at p 216, para 55, and Henry LJ did not offer any support for the approach suggested by Hale LJ.
72. In Smith v Gardner Merchant Ltd  ICR 134, 158-159 Beldam LJ said that the use of the catch phrase "compare like with like" might in some cases disguise the need to inquire whether a circumstance really is relevant to the conduct complained of in a particular case. He said that in the circumstances of that case, which was a case of sexual harassment, it was as irrelevant to consider the sexual orientation of the victim as it was in Porcelli v Strathclyde Regional Council  ICR 564 (reported in the Session Cases as Strathclyde Regional Council v Porcelli 1986 SC 137) to consider whether the employees in that case would have similarly treated a man whom they disliked. He explained the approach which he favoured in this way at p158:
73. The advice which Beldam LJ gave in this passage that one must always be careful to inquire whether a circumstance really is relevant to the conduct complained of is valuable. It is, of course, important to ask in the case of a male claimant whether he was treated in the way he was because he was male. I shall have more to say about the way the question of the comparator was treated in Strathclyde Regional Council v Porcelli 1986 SC 137 when I come to examine the issue of sexual harassment. But the findings in that case made it clear that the campaign to which the claimant was subjected included significant elements of a sexual character to which a man would not have been vulnerable. Lord President Emslie said at p 145 that, although the campaign as a whole had no sex related motive or object, the particular part of it which was in issue in that case was a particular kind of weapon based upon the sex of the victim which would not have been used against an equally disliked man. The question of sexual orientation was absent from that case. The only issue was whether it was a case of discrimination on the ground of the claimant's sex.
74. But I do not agree with the way in which the counter argument was put by Beldam LJ. It is not right to say that one is asking oneself whether the male claimant was treated as he was because he was a male with a particular sexual inclination. This is Mr O'Neill's point that the two concepts overlap, which in the context of this legislation I would reject. The question is whether the man was treated as he was because he was male or whether he was treated as he was because of his sexual inclination. If the facts show that men and women with the same sexual inclination would have been treated in the same way but that men and women with a different sexual inclination would have been treated differently, the only conclusion that one can draw is that the reason for the difference was not the sex of the claimant but his sexual inclination.
75. In Smith v Gardner Merchant Ltd  ICR 134 p 159, Beldam LJ went on to say this:
76. This passage was approved and adopted by Lord Prosser in Mr Macdonald's case: 2001 SC 1, 13, para 33;  ICR 174, 186. Developing the same theme, he explained his understanding of the point in this way in para 34, p 187:
At p 14, para 37, p 188 he said that, if one was faced with a man wanting or having a partner of a given gender, a comparison must be with a woman having or wanting the same - a partner of the same gender. Although he did not think that it was relevant to consider the person's general wishes or conduct, the position if one took that route was the same:
77. It seems to me however that this simple approach, as Lord Prosser described it, suffers from the same problem as that recommended by Dr Wintemute. The proposition that Mr Macdonald, who is attracted by males, should be compared with a woman who is attracted by males involves changing not only the sex of the comparator but also her sexual orientation. One cannot avoid the issue by saying that, as sexual orientation consists in being attracted by one gender or the other, to describe him as a homosexual is merely a comment on his orientation which can be dismissed as irrelevant as it adds no new fact. The search is for a comparator whose circumstances are the same as those of the claimant except for his sex. The comparator's circumstances are not the same as that of the homosexual if her sexual orientation is towards persons of the opposite sex.
78. While I would reject the approach to this problem which was favoured by Beldam LJ and by Lord Prosser, there is another possible approach that might be taken to it which has some attraction. The argument can be expressed in this way. Mr Macdonald's case is plainly about his sexual orientation. But the prohibition which was applied to him under the armed forces' policy against being sexually attracted to men was also based on his gender. This is because women were not being subjected to the same prohibition. In their case an attraction to men was permitted. This was a prohibition about the appellant's sexual conduct which proscribed conduct that was generally accepted if engaged in by women. The fact that the prohibition was really about gender and not sexual orientation can be seen, it might be argued, from the fact that it is not until one has identified the gender of the person who is attracted by men that one can say whether or not the policy is being breached. An anonymous advertisement for a male partner may or may not breach it. Whether it does or not depends on the gender of the person who placed the advertisement.
79. But I think that the answer to this further argument is that it all depends on the facts, and I would analyse the facts of Mr Macdonald's case in this way. We have to begin by identifying the sex or gender of the claimant, as his case is that he was discriminated on this ground. We know that Mr Macdonald is a man. Then we have the policy which led to his dismissal and his complaint of sexual harassment. Homosexuality, whether male or female, was considered incompatible with service in the armed forces. This is the explanation which is offered for his treatment. The way in which the policy was expressed shows that, while gender was relevant to its application in practice, it was in terms a policy about sexual orientation. So the case cannot be treated as one where the treatment which the complainant received was self-evidently discriminatory on the grounds of sex. To see whether it was in fact on the ground of sex and not on the ground of sexual orientation one must resort to the process of comparison.
80. Then it was said that the same approach should be taken to this process as that which is taken in cases of racial discrimination under section 1(1)(a) of the Race Relations Act 1976. Typical examples of such cases are where a white person is refused entry to a restaurant on the ground that he has a black person with him, or a black person is refused entry because he is in the company of a white person. Section 3(3) of the 1976 Act provides that a comparison of the case of a person of a particular racial group with that of a person not of that group must be such that the relevant circumstances in the one case must be the same, or not materially different, in the other. The wording of this provision is the same, mutatis mutandis, as that of section 5(3) of the Sex Discrimination Act 1975. But in a racial discrimination case of the type mentioned it is the racial characteristic of the third party that is usually the decisive factor. This because a black person who was with a black person, or a white person who was with a white person, would be likely to be treated in the same way.
81. Similarly, in Smyth v Croft Inns Ltd  IRLR 84, para 28, which was a case of discrimination on the ground of religious belief in Northern Ireland where the respondent was dismissed from his position as a barman in a pub in a loyalist area of Belfast where the customers were Protestants because he was a Roman Catholic, Hutton LCJ said that the relevant comparator was a Protestant barman who would not have been threatened because of his religious beliefs. He added that the employer's case could not cease to be unlawful discrimination if, instead of owning only one bar patronised by Protestants, he also owned a second bar in a Roman Catholic neighbourhood, patronised by Roman Catholics, in which he dismissed a Protestant barman. Here too it is plain that the relevant circumstances included the religious beliefs of the customers as well as those of the dismissed barmen. If this is so, it is asked, why should account not be taken of the sexual orientation of the person to whom the claimant and the comparator are both attracted?
82. As the Advocate General in Mr Macdonald's case pointed out, there is a difference in wording between section 1(1)(a) of the Race Relations Act 1976, which refers to discrimination "on racial grounds", and section 1(1)(c) of the Sex Discrimination Act 1975, which refers to discrimination against a woman "on the ground of her sex". The reach of the 1976 Act is wider, as can be seen from Weathersfield v Sargent  ICR 425 where it was held that the applicant who had been dismissed for refusing to implement a racially discriminatory trading policy had been discriminated against on racial grounds. It is necessary to give full weight to the words used in the subsection, as Lord Simon of Glaisdale said in Race Relations Board v Applin  AC 259, 289. If this is not done, conduct which is plainly within the mischief would escape. The same may be said of section 16(1)(a) of the Fair Employment (Northern Ireland) Act 1976, as amended by the Fair Employment (Northern Ireland) Act 1989, which refers to discrimination "on the ground of religious belief or political opinion." But this is not a wholly satisfactory answer to the question. The better answer, I think, is that there is no fixed rule that the characteristics of the third party must be taken into account or must be regarded as irrelevant. It is necessary to form a judgment as to what is relevant in the light of the facts of each case, bearing in mind the wording of the relevant subsection which declares the kind of discrimination which is in issue to be unlawful.
Making the comparison
83. Mr Macdonald has admitted to being a homosexual. His known characteristics are therefore that he is male and that he is homosexual. The question is whether the treatment which he received was less favourable than that which a woman would have received in the same circumstances, applying the rule which section 5(3) lays down. One must change the gender when the rule is applied. But, as the policy was about sexual orientation, one can only discover whether this was truly a case of discrimination on the ground of gender by comparing his case with that of a woman who shares with him the characteristic of homosexuality. If she would have been treated more favourably, then one can of course conclude that this is a case of discrimination on the grounds of sex. But if she would have been treated in just the same way, and if heterosexuals would have been treated more favourably, one is driven to conclude that the critical fact in Mr Macdonald's case was his sexual orientation and not his gender. That is the conclusion which I would draw in his case.
84. I would analyse Ms Pearce's case in the same way. She is a woman, and it became known in the school that she is a lesbian. These are the relevant characteristics in her case. From about 1991 to May 1995 she was subjected to verbal abuse by pupils who used language which identified her as a lesbian. Her complaint against her employers is that this was a detriment, and that in subjecting her to it they discriminated against her on the ground of her gender. The question is whether the treatment which she received was less favourable than a man would have received in the same circumstances, applying the rule in section 5(3). Here again one must change the gender in order to see whether this was indeed discrimination on the ground of her sex. But the other characteristic, which was relevant to the way the pupils treated her, must remain the same. So the treatment which she received must be compared with that which would have been received by a male homosexual. It is plain from the findings of the employment tribunal that the school would not have treated a male homosexual teacher who had been subjected to homophobic abuse by his pupils any differently. These findings lead to the inevitable conclusion that, while it is plain that she was harassed and humiliated, she was not discriminated against on the ground of her sex.