Macdonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) (Scotland), Pearce (Appellant) v. Governing Body of Mayfield School (Respondents)
144. The alternative argument for Ms Pearce made up the second issue in the appeal. The terms of the abuse used by the pupils were gender-specific: such terms as "lesbian", "lezzie" and "lemon" could only be used of a female homosexual. Therefore, but for her sex, the pupils would not have subjected her to abuse in these terms. Where the harassment was of a kind that could only be addressed to a woman, a tribunal did not need to identify a male comparator: the pupils had treated Ms Pearce differently from the way that they would have treated any man. Such treatment therefore fell to be regarded as sex discrimination in terms of section 1(1)(a) of the 1975 Act: Strathclyde Regional Council v Porcelli 1986 SC 137;  ICR 564. On behalf of the respondent Ms Booth argued that this approach too was flawed. It was wrong to examine minutely the precise words used in abusing Ms Pearce and to infer from them that the pupils were abusing her because she was a woman. The pupils abused Ms Pearce because she was a homosexual and in doing so simply used terms of abuse that applied to a homosexual woman. Had they abused a male teacher because he was a homosexual they would equally have used terms of abuse that applied to a homosexual man. In each case they might have used gender-neutral terms of abuse towards homosexuals: the precise terms used were therefore not a basis for saying that the pupils had abused Ms Pearce on the ground of her sex. In so far as any observations of the judges in Strathclyde Regional Council v Porcelli and subsequent authorities might suggest that in cases of sexual harassment there was, as a matter of law, no need to make a comparison with the treatment of a male, they were unsound.
145. The third issue in Ms Pearce's appeal arises only if she succeeds on either of the first two issues and the pupils' treatment of her falls to be regarded as sex discrimination in terms of the 1975 Act. In that event, Mr Emmerson submitted that the House should adopt the provisional conclusion of the employment tribunal that the school would have subjected Ms Pearce to a detriment in the form of sex discrimination by the pupils and that the respondent would accordingly have been liable themselves in terms of sections 1(1)(a) and 6(2)(b) of the 1975 Act: Burton v De Vere Hotels Ltd  ICR 1. Acting as an employment jury, the employment tribunal had been entitled to reach that conclusion and the EAT and the majority of the Court of Appeal had been wrong to interfere with it. The case should therefore be remitted to the tribunal to deal simply with compensation. Ms Booth submitted that Judge LJ's criticisms of the employment tribunal's conclusion on this point were sound and that, even if Ms Pearce succeeded on either of the first two issues, the appropriate course would be for the House to hold that she had not established that the school had failed to take any step which would have prevented or reduced the pupils' discrimination against her. Her appeal should therefore be refused.
The first issue
146. The issue raised by the first ground of appeal is the same in both cases, even though the facts giving rise to it are very different. I begin with the case of Mr Macdonald but much of what I say in that regard applies equally to the case of Ms Pearce. Put shortly, Mr Macdonald's argument is that the RAF dismissed him because he admitted to being attracted to men, whereas they would not have dismissed a woman who admitted to being attracted to men. They accordingly treated him less favourably than they would have treated a woman in the same circumstances. This amounts to discrimination against him as an employee: sections 1(1)(a) and 6(2)(b) of the 1975 Act. The submission is based on a line of argument to be found in D Pannick, Sex Discrimination Law (1985), pp 200 - 203 and in various writings by Dr Robert Wintemute, such as Sexual Orientation and Human Rights (1995), pp 201 - 207 and "Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes" (1997) 60 MLR 334, 344 - 353.
General aspects of the 1975 Act
147. I must first notice a number of more general points relating to the 1975 Act.
148. It is common ground that the 1975 Act was designed to deal with the mischief of discrimination on the ground of sex, in the sense of gender as opposed to sexual orientation. This is consistent with the fact that the Act was intended to give effect to Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions ("the Equal Treatment Directive"). Counsel for the respondents in both appeals contended that, once it was accepted that the 1975 Act dealt with discrimination on the ground of gender, it followed that the appellants must necessarily fail on the first issue since they were asking the House to distort the interpretation of the 1975 Act so as to accommodate a claim for discrimination on the ground of sexual orientation. I should not be inclined to go so far. Once it is clear that the 1975 Act is intended to deal with discrimination on the ground of gender rather than sexual orientation, it is certainly equally clear that, even on the appellants' approach, cases like theirs could not have been at the heart of the legislators' concerns in enacting the statute. Rather, as is suggested by the form of section 1(1)(a), the opening provision of the Act, Parliament's main concern was to put an end to certain areas of discrimination against women on the ground that they were women rather than men. The legislators are therefore unlikely to have envisaged that homosexual persons such as the appellants would seek to use the Act to advance the kinds of claims to be found in these appeals. In itself that is not, however, a conclusive objection to the success of these claims. If the appellants could indeed show that they had been less favourably treated on the ground of their sex, then they would be entitled to a remedy even if theirs were marginal, rather than paradigm, cases of sex discrimination under the Act.
149. If sound, the appellants' approach is undoubtedly far-reaching. At first sight, it might seem as if it would turn every claim for discrimination on the ground of sexual orientation into a claim for discrimination on the ground of sex under the 1975 Act. Which, again, might be thought to run counter to Parliament's intention. With the aid of a number of ingenious and, more or less, plausible scenarios Mr Emmerson showed, however, that even on the appellants' interpretation there could be cases of discrimination on the ground of sexual orientation which would not constitute claims of sex discrimination under the Act. For example, if an employer employs only lesbians, then a heterosexual woman who is refused work has no claim for sex discrimination since she has not been treated less favourably than any man, whether heterosexual or homosexual.
150. The appellants' approach posits that in certain situations a person can be discriminated against both on the ground of sexual orientation and on the ground of sex. In Smith v Gardner Merchant Ltd  ICR 134, 146 - 147 Ward LJ accepted that this was possible. I do too: in the example that I have just given, a homosexual man could complain that the employer discriminated against him both on the ground of his sex and on the ground of his sexual orientation, for that would, in fact, be the position. It is therefore no objection in principle to the appellants' argument that it would involve holding that they had suffered discrimination on both grounds. Whether in any individual case someone discriminates on both grounds is, however, a question of fact to be resolved by a tribunal on the basis of the evidence.
151. Although counsel for the respondents argued that the appellants' approach in these appeals depended on distorting the terms of the 1975 Act, I am not satisfied that this is so. As I have explained, Mr Macdonald says that the RAF dismissed him because he admitted to being attracted to men, whereas they would not have dismissed a woman who admitted to being attracted to men. He was therefore treated less favourably than a woman in the same circumstances on the ground of his sex. If he were correct to characterise what happened to him in this way, then there would be nothing forced in saying that the RAF had discriminated against him in terms of sections 1(1)(a) and 6(2)(b). For that reason, Mr Macdonald's case would not, in my view, be significantly advanced by applying any more generous canon of construction to the interpretation of the relevant sections in the light of the decisions of the European Court of Human Rights in Smith and Grady v United Kingdom (1999) 29 EHRR 49 and Lustig-Prean and Beckett v United Kingdom (1999) 29 EHRR 584. I should add that, even assuming that section 22(4) of the Human Rights Act 1998 applies to proceedings that were pending when it came into force, for the reasons given by my noble and learned friend Lord Nicholls of Birkenhead, Mr Macdonald cannot obtain a remedy under that Act in these proceedings.
152. Since the 1975 Act was intended to be administered by employment tribunals with a predominantly lay membership, Parliament must have envisaged that the issues to be decided under the Act would, typically at least, be issues of fact rather than issues of law, far less, sophisticated issues of law. Moreover, since all the matters of fact in a case are for the tribunal to determine, it is only exceptionally that an appellate body will be entitled to interfere with the facts as found by the tribunal. Despite the copious citation of legal authorities, however, what the appellants are really asking the House to do is indeed to revisit the facts as determined by the tribunals in these appeals, to re-analyse them and, on the basis of that re-analysis, to conclude that the appellants were treated less favourably on the ground of their sex. Within appropriate limits re-analysis of facts may, of course, be entirely legitimate and indeed helpful; it will be unhelpful and illegitimate, however, if it involves unjustifiably altering or displacing the facts as found by the tribunal.
The appropriate comparison
153. In both appeals the critical difference between the parties may seem narrow. Sections 1(1)(a) and 5(3) require a comparison to be made between the way the alleged discriminator treats the alleged victim in "the relevant circumstances" and the way he treats or would treat a person of the opposite sex in the same or not materially different circumstances. For the appellants the crucial question is whether, as the respondents contend, their homosexuality was a "relevant circumstance" for the purposes of this comparison. Both employment tribunals held that it was and that the appellants had not been treated less favourably than a homosexual of the opposite sex would have been treated. Their applications accordingly failed. The Extra Division of the Court of Session and the Court of Appeal upheld those decisions. If the appellants' homosexuality, i e their attraction to persons of the same sex, is not a relevant circumstance, however, then the appellants fall to be regarded simply, respectively, as a man who is attracted to men and a woman who is attracted to women. On that approach Mr Macdonald would have been able to satisfy the tribunal that he had been treated less favourably than a woman attracted to men (who would not have been dismissed), while Ms Pearce could have shown that the pupils had treated her less favourably than a man attracted to women (who would not have been subjected to the same abuse).
154. At various times during the argument in Ms Pearce's appeal Mr Emmerson suggested that the answer in her case could be found simply by applying the "but for" test first set out in the speech of Lord Goff of Chieveley in R v Birmingham City Council, Ex p Equal Opportunities Commission  AC 1155, 1193 - 1195 and then repeated by him in James v Eastleigh Borough Council  2 AC 751, 774B - C. As Lord Goff saw it,
If one asked "Would Ms Pearce have received the same treatment from the pupils but for her sex?" then, said Mr Emmerson, the answer was that she would not. But, in truth, Lord Goff's test offers no quick solution. The test, which falls to be applied within the context of sections 1(1)(a) and 5(3), is expressed in an attractive shorthand. Spelled out somewhat more fully, in this case Lord Goff's question is: "In similar circumstances would Ms Pearce have received the same treatment from the pupils if she had been a man?" The convenient shorthand version must not be allowed to obscure the fact that a tribunal cannot answer the question without knowing what the relevant circumstances are.
155. In Shamoon v Chief Constable of the Royal Ulster Constabulary  ICR 337 the House had occasion to consider what circumstances amount to "the relevant circumstances" in article 7 of the Sex Discrimination (Northern Ireland) Order 1976, which is in identical terms to section 5(3) of the 1975 Act. As I explained in that case, at paras 134-136, in my view "the relevant circumstances" in section 5(3) are those which the alleged discriminator takes into account when deciding to treat the woman as he does or when deciding to treat a man as he treats, or would treat, him. In a contested case it is for the employment tribunal to decide on the basis of the available evidence what circumstances the alleged discriminator takes into account or would take into account in reaching his decision.
156. In Mr Macdonald's case, therefore, the employment tribunal had to decide what circumstances the RAF took into account when deciding to dismiss him. Those were then the relevant circumstances for the purposes of determining whether the RAF had treated him less favourably than they would have treated a woman.
157. Before the tribunal Mr Macdonald did not dispute that, when they dismissed him, the RAF were applying the policy on homosexual personnel which was then current. Paragraph 1032(1) of Queen's Regulations stated: "Homosexuality, whether male or female, is considered incompatible with service in the Armed Forces." The policy encapsulated in that paragraph was set out more fully in an official leaflet, AP 3392 - Vol 5, No 107 dated August 1995 which defined a homosexual as "a person who is sexually attracted to a member of the same sex" and homosexuality as "behaviour characterised by being sexually attracted to members of the same sex". Paragraph 3 of the policy included the following:
This policy subjected homosexual men and women who wished to serve in Her Majesty's armed forces to a privilegium odiosum. Following the decisions of the European Court of Human Rights in Smith and Grady v United Kingdom (1999) 29 EHRR 49 and Lustig-Prean and Beckett v United Kingdom (1999) 29 EHRR 548, however, the armed forces abandoned the policy. So service men and women no longer face the problems which confronted Mr Macdonald. In the circumstances the Advocate General did not seek to justify the treatment of Mr Macdonald under the former policy.
158. Since the RAF applied that policy in the case of Mr Macdonald, the criteria that it contained are an indication of the circumstances which they took into account when deciding to dismiss him. In terms of the policy individuals were to be required to leave the service if they "admitted to being homosexual while serving" and their commanding officer judged the admission to be well founded. So, once the tribunal were satisfied that the RAF dismissed Mr Macdonald because he admitted to being homosexual, that admission would indeed be the relevant circumstance in his case for the purposes of section 5(3). His case would therefore fall to be compared with that of a woman who admitted to being a homosexual.
159. Before turning to examine a number of arguments which the appellant advances against adopting this straightforward approach, it is important to notice that it is consistent with the role of the 1975 Act as the vehicle for transposing the Equal Treatment Directive into the domestic law of the United Kingdom. The Court of Justice has rejected attempts to use the Directive to give a remedy to litigants who were, it held, really complaining of discrimination on the ground of their sexual orientation.
160. So in Grant v South-West Trains Ltd C-249/96  ECR I-621 a female employee of a railway company had been living in "a meaningful relationship" with another woman for over two years. She applied for a travel concession for her partner. A male employee living in a meaningful relationship with a woman for over two years would have been entitled to the concession. The company refused to give Ms Grant the benefit on the ground that in terms of their regulations the concession could be granted only for a partner of the opposite sex. The tribunal referred a number of questions to the European Court of Justice. The court held inter alia, at paras 26 - 28:
161. Similarly, in D and the Kingdom of Sweden v Council of the European Union C-122/99 P and C-125/99 P  ECR I-4319 D was an official of the Council of the European Union who had registered his partnership with another man under the relevant Swedish legislation. He applied to the Council for a household allowance that was available in terms of the staff regulations to a married official. The Council rejected the application on the ground that the regulations could not be construed as allowing a registered partnership to be treated as being equivalent to marriage. D brought proceedings in the Court of First Instance challenging that decision inter alia on the ground of sex discrimination. The court dismissed the application and D appealed to the Court of Justice which held:
162. These two decisions are significant because, on matters raising essentially the same issue as is raised by the appellants in the present cases, the Court of Justice rejected the approach advocated by the appellants.
163. The position under Community law has moved on, however. Article 13 of the EC Treaty now deals with discrimination on the ground of sexual orientation. On that Treaty base the Council adopted Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. The member states must transpose the directive into their domestic legal systems by 2 December 2003. Subject only to limited exceptions, articles 1 and 2 prohibit discrimination on the ground of sexual orientation in relation to matters of employment and occupation. The Government has issued for consultation a draft regulation to be made under section 2(2)(a) of the European Communities Act 1972. Once in force that legislation will provide remedies in United Kingdom law to persons, such as the appellants, who complain of discrimination on the ground of their sexual orientation in relation to their employment.
The male homosexual - female heterosexual comparison
164. In an attractive submission Mr O'Neill QC argued, however, that, even under the existing law, Mr Macdonald was entitled to a remedy. In broad terms he adopted the reasoning of Lord Prosser in the Court of Session. In particular he submitted that it was wrong to include among the relevant circumstances for the purposes of section 5(3) the fact that Mr Macdonald had admitted to being a "homosexual" - the description or characterisation used in the RAF policy. I accept that it would be objectionable to include that description or characterisation among the relevant circumstances if it had itself been inherently discriminatory on the ground of sex. In James v Eastleigh Borough Council, for instance, the objection to including "pensionable age" among the relevant circumstances for the purpose of comparing the council's treatment of Mr James with their treatment of his wife was not that it derived from the council's policy but rather that the criterion was itself discriminatory:  2 AC 751, 766D - E per Lord Bridge of Harwich. Similarly, the inclusion of Mr Macdonald's homosexuality among the relevant circumstances of his case would be objectionable if, but only if, that criterion, as used in the RAF policy, was itself discriminatory on the ground of sex.
165. Mr O'Neill submitted that the RAF policy did indeed discriminate on the ground of sex. He said that this became clearer if the policy were broken down. The statement in the policy:
could be analysed into two parallel statements:
In effect, it was the first of those two parallel statements that had been applied in Mr Macdonald's case: the RAF had treated him as a man who had admitted to being attracted to men and had accordingly dismissed him. Since a woman who admitted to being attracted to men while serving would not have been required to leave the service, the RAF had treated him less favourably than a woman in the same circumstances on the ground of his sex.
166. The logic is impeccable but the argument is flawed.
167. Let it be assumed that the RAF policy can be broken down in this way. Nevertheless, the statement relating to males has to be considered along with the parallel statement relating to females. When taken together, the two statements would still make up a gender-neutral policy for dealing with homosexuals serving in the RAF: whatever their gender, they would have to be dismissed. So, other things being equal, the process of rewriting does not reveal that beneath the gender-neutral surface of the actual policy there lurked a different gender-specific policy.
168. In any event, the proper approach is indeed to have regard to the actual terms of the policy which, according to the evidence, the RAF applied in Mr Macdonald's case. On its face that policy was gender-neutral: it applied to all "individuals", irrespective of gender, who admitted to being homosexual. Nor did Mr O'Neill argue that the application of the policy involved indirect discrimination against male, as opposed to female, homosexuals. In his powerful dissent in the Court of Session, 2002 SC 1, 14, para 37, however, Lord Prosser held that the actual discrimination in Mr Macdonald's case was quite simply on the ground of gender. In coming to that view he placed considerable emphasis on homosexual relationships as partnerships and in effect saw the RAF policy as being concerned with who could be a partner of a male or female in the service. On this basis he drew an analogy with a bridge club that has a rule allowing, say, only single-sex pairs (which might be described as "same-sex pairs" and which might indeed have been described as "homo-sexual pairs" if the language had developed differently). If an individual of known gender asks whether he or she can have Y as his or her partner, then the answer will depend on Y's gender. Lord Prosser commented that it could therefore not be denied that a refusal in terms of the rule was on the ground of gender: 2002 SC 1, 13, para 35. He went on to say that, where a decision depended critically on discovering the gender of each partner, this must not be masked by the use of referential terms such as "same" or "opposite": 2002 SC 1, 14, para 37. Mr O'Neill commended Lord Prosser's approach. With respect, however, I am not persuaded that his argument shows that the RAF discriminated against Mr Macdonald on the ground of his sex rather than on the ground of his sexual orientation.
169. In Lord Prosser's example, the bridge club committee might, I suppose, adopt a single-sex rule for pairs because, in their painful experience, single-sex pairs conduct somewhat less violent post-mortems than mixed pairs. In adopting and enforcing the policy, the committee would be hoping to minimise dispeace in the club. It would certainly be no part of their aim to discriminate between men and women on the ground of their sex. Rather, they would wish to treat women in exactly the same way as men: women could only play with women and men with men. All that would matter to the committee would be that the two players making up a pair should be of the same sex. The committee's policy would therefore be gender-neutral. In this respect it would be identical with the RAF policy.