Macdonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) (Scotland), Pearce (Appellant) v. Governing Body of Mayfield School (Respondents)
170. Since both the RAF policy and the bridge club rule are expressed in terms of "the same sex", in theory both could be operated without knowing the sex of the persons concerned. So, if the secretary of the bridge club receives a booking for four single-sex pairs for Saturday evening, she knows that, in accordance with the club rule, she can set aside two tables for them without ascertaining the genders of the persons making up the pairs. Similarly, if a clerk in the RAF had been presented with a pile of anonymous forms, each containing an admission that the individual concerned was attracted to persons of the same sex, the clerk would have known that the individuals were homosexuals and fell to be dealt with in terms of the homosexuality policy.
171. In practice, however, more often than not it will be necessary to have regard to gender when operating such a gender-neutral policy. For instance, as Lord Prosser's example of the bridge club shows, the secretary will usually have to discover someone's gender in order to be able to enforce the rule stipulating that only people of the same sex may play as partners. Therefore the fact that the bridge club's rule is gender-neutral does not mean that questions of gender do not arise when the rule is being operated. Conversely - and more importantly for present purposes - the fact that questions have to be asked about gender in order to operate the rule does not mean that the rule itself is not gender-neutral or that the club treats people favourably or unfavourably on the ground of their sex. If, for instance, a lady member of the bridge club asks the secretary whether she can play with her friend Evelyn, the secretary must ask her whether her friend is a "he-Evelyn" or a "she-Evelyn". This is not because the secretary has any intention of treating the lady member less favourably than a gentleman member: rather, the secretary must find out Evelyn's gender simply in order to be able to say whether the friends can play together under the club's (gender-neutral) rule permitting single-sex pairs only.
172. The same applies if a night club advertises an evening for "gay couples". A doorman confronted by a man wanting to get in must discover whether he is accompanied by another man. Similarly, if confronted by a woman wanting to get in, the doorman must find out whether she has a woman with her. The club has no preference for men rather than women or for women rather than men. On this particular evening, however, it wants only homosexual couples and, to that end, it operates a gender-neutral policy but one that the doorman cannot apply without knowing the sex of the two members of any couple asking to be allowed in. It would be absurd to suggest that, by not permitting a woman to enter in the company of a man, the doorman treats her less favourably, on the ground of her sex, than a man who wants to be admitted along with another man. Rather, the doorman is enforcing the club policy for this particular evening, which is to limit admission to homosexual couples and to exclude heterosexual couples.
173. Similarly, if a male officer in the RAF had said to his commanding officer that he was attracted to Evelyn, the commanding officer would have had to discover Evelyn's gender simply in order to know whether the RAF's homosexuality policy applied. Had a female officer said the same thing, the commanding officer would have had to ask exactly the same question for the same reason. The fact that these questions had to be asked does not mean that the RAF - any more than the secretary of the bridge club or the doorman of the night club - were discriminating on the ground of sex, by favouring women over men or vice versa. If it turned out that the policy did apply, the circumstance that the RAF would take into account in deciding to dismiss the officer would be that the officer, whether male or female, was attracted to a member of the same sex. The RAF would treat officers of both sexes in precisely the same way. More particularly, they would not treat officers of one sex less favourably than those of the other on the ground of their sex.
174. Since the RAF policy was designed to treat homosexual men and homosexual women equally, it is not to be compared with the racial discrimination legislation which the United States Supreme Court struck down in Loving v Virginia 388 US 1 (1967). The intention of the Virginian legislature was to maintain white supremacy by preventing a white person from marrying an "inferior" black person. In that situation the Supreme Court had no difficulty in rejecting Virginia's argument that there was no racial discrimination because a white man wanting to marry a black woman and a black man wanting to marry a white woman were both punished. The argument was fallacious since both cases involved deliberate racial discrimination. I refer, for example, to the comments in the majority opinion in Lawrence and Garner v Texas 41 SW 3d 349, 357 - 358 (2001). By contrast, since in adopting their policy the RAF's aim was not to treat persons of one sex less favourably than persons of the other, it is legitimate, when considering whether the policy did none the less involve discrimination on the ground of sex, to have regard to the fact that a female homosexual was to be dismissed just like a male homosexual.
175. In Smyth v Croft Inns Ltd  IRLR 84 the defendants employed the Roman Catholic applicant as a barman in a pub with Protestant customers in a loyalist area of Belfast. The charge hand received a sinister message to the effect that the applicant should not be in the bar the following week. The applicant was worried by the threat but the defendants took no steps except to tell him that he could stay or go. The applicant resigned and made an application to the Fair Employment Tribunal under the Fair Employment (Northern Ireland) Act 1976. He claimed that the defendants had discriminated against him on grounds of religious belief in that they had constructively dismissed him. The defendants argued inter alia that they would have treated a Protestant barman in a pub with Roman Catholic customers in a Roman Catholic area in the same way. The Court of Appeal in Northern Ireland rejected that argument as fallacious on the ground that, if the defendants had treated the Protestant barman in the same way, they would have been guilty of religious discrimination against both barmen. In my respectful opinion, that decision was plainly correct, but it does not assist Mr Macdonald. In Smyth the defendants treated the applicant less favourably than a Protestant barman working in the same pub and would have treated a Protestant barman less favourably than a Roman Catholic barman working in the same pub. On the defendants' argument there would therefore have been two acts of religious discrimination and, as the Court of Appeal held, the one could not cancel out the other. By contrast, the RAF did not treat Mr Macdonald less favourably than a female homosexual who admitted to being homosexual; likewise they would not have treated a female homosexual who admitted to being homosexual less favourably than a male homosexual in the same circumstances. There is therefore no question in Mr Macdonald's case of one act of sex discrimination being used to cancel out another.
Disposal of Mr Macdonald's first ground of appeal
176. Before the employment tribunal Mr Macdonald did not dispute that the RAF applied their policy on homosexuality in reaching their decision to dismiss him. Nor did he suggest that they applied any other policy. It was therefore open to the employment tribunal, as a reasonable tribunal, to conclude that the RAF dismissed Mr Macdonald because he had admitted to being a homosexual. And that was indeed the tribunal's finding on what was a matter of fact. There is no legitimate basis upon which the House could interfere with that finding. That being so, Mr Macdonald's admission to being a homosexual was the crucial circumstance in his case for the purpose of comparing the way the RAF treated him with the way they would have treated a woman in the same circumstances. Mr Macdonald accepts that the RAF would also have dismissed a woman who admitted to being a homosexual. It follows that he has failed to show that the RAF treated him less favourably than they would have treated a woman in the same circumstances. His first ground of appeal must accordingly be rejected.
Disposal of Ms Pearce's first ground of appeal
177. Like Mr Macdonald, on her first ground of appeal Ms Pearce runs headlong into the findings of the employment tribunal. Again, the relevant circumstances for the purposes of the section 5(3) comparison were those that the tribunal found that the pupils had taken into account when treating her as they did. As is clear from paragraphs 80 to 86 of their extended reasons, having considered the evidence, the tribunal came to the view that, with the exception of the incident on 1 March 1995, the pupils decided to treat Ms Pearce as they did not because of her sex but because of her sexual orientation. In other words, the pupils took account of her sexual orientation. The tribunal reached that conclusion, which is a factual conclusion, because the terms of abuse that the pupils used ("lezzie", "lemon" etc) were directed to her sexuality. It was a conclusion which the tribunal, as a reasonable tribunal, were entitled to reach and with which the House cannot, accordingly, interfere. That being so, among the relevant circumstances in her case was the fact that Ms Pearce was a homosexual teacher. So what the tribunal required to do in terms of sections 1(1)(a) and 5(3) was to compare the way the pupils treated Ms Pearce with the way they would have treated a male homosexual teacher. The tribunal carried out that comparison and concluded that there was nothing to suggest that the pupils would have treated a male homosexual teacher any more favourably.
178. It follows that Ms Pearce's first ground of appeal too must be rejected.
The second issue: Ms Pearce
179. The second issue also raises points that apply to both appeals but, on this matter, they are more sharply focused in Ms Pearce's appeal. It is accordingly appropriate to concentrate on it.
180. In presenting his submissions in support of the second ground of appeal Mr Emmerson once more drew attention to the nature of the abuse which the pupils had addressed to Ms Pearce. All of it was in terms that applied exclusively to women. It followed automatically from the sex-specific terms of the abuse that it could never have been addressed to a man. The tribunal should have concluded accordingly that Ms Pearce had been treated less favourably on the ground of her sex in terms of section 1(1)(a). The pupils' treatment of her could properly be described as sexual harassment. In such cases there was no need to identify a male comparator.
181. The origin of the no-comparator argument lies in the interpretation that has been placed on the decision of the Court of Session in Strathclyde Regional Council v Porcelli 1986 SC 137;  ICR 564. Most notably, in British Telecommunications Plc v Williams  IRLR 668, 669 Morison J, giving the decision of the EAT, said:
Similarly, in the EAT in Mr Macdonald's case, when speaking of the interview in which Wing Commander Leeds asked Mr Macdonald intrusive questions about his sexual relations with other men, Lord Johnston said that the test in Porcelli had to apply and there was therefore no need for a female comparator:  ICR 1, 13, para 32. In the analogous sphere of racial discrimination the same approach is to be seen in the agreement of counsel before the EAT in Burton v De Vere Hotels  ICR 1, 6, paras 18 and 19.
Sexual harassment and Comparators
182. The term "sexual harassment" is not to be found in the 1975 Act; nor is such conduct expressly dealt with in the Act. Again, it is noteworthy that the Equal Treatment Directive has been amended by Directive 2002/73/EC of 23 September 2002 so that, in the amended version of article 2, sexual harassment is first defined and then deemed to be discrimination on the grounds of sex. The member states have until 5 October 2005 to make the necessary changes to their domestic law.
183. Under the 1975 Act as it exists at present, however, if a remedy is to be granted for sexual harassment, it can only be because the harasser can be said to treat his female victim "less favourably" than he treats or would treat a man on the ground of her sex: section 1(1)(a). The test is framed in terms of a comparison and the basis of that comparison is spelled out in section 5(3). These requirements must be met if conduct is to fall within the terms of the legislation.
184. Classic cases of sexual harassment, where the motivation of the conduct is sexual, fit easily into the legislation. If, for example, a male manager pursues a female member of staff and, despite her objections, fondles her, tries to kiss her and makes suggestive remarks to her, then he subjects her to a detriment in terms of section 6(2)(b). Moreover, in doing so, in most cases at least, it can be said that he discriminates against her because he treats her less favourably on the ground of her sex than he treats or would treat male members of staff: section 1(1)(a). Since the manager is not sexually attracted to the men on the staff, he would not treat them in the same way. This is a straightforward application of the terms of the legislation: in particular, the manager's treatment of the woman is compared with his treatment of the men on his staff and is found to be less favourable. The comparison may be self-evident - because the manager is exclusively heterosexual and is driven by his attraction to the female employee - but it is none the less real.
185. In Strathclyde Regional Council v Porcelli the idea of sexual harassment was widened to include cases where the motivation of the harasser was not sexual. It is necessary to examine the case in some detail.
186. Mrs Porcelli worked as a laboratory technician in a school. Two men came to work in the same department and embarked upon a policy of vindictive unpleasantness towards her with the aim of making her apply for a transfer from the school. Certain parts of this campaign involved conduct with a sexual connotation. Eventually Mrs Porcelli transferred to another school and complained to an industrial tribunal that the two men employed by the education authority had discriminated against her on the ground of her sex. The industrial tribunal rejected her complaint and explained their reasons in this way:
The EAT reversed the tribunal's decision on grounds that it is unnecessary to consider. The local authority appealed unsuccessfully to the Court of Session.
187. Lord President Emslie noted, 1986 SC 137, 145, that the parties were at one in submitting that the appeal gave rise to two questions relating to section 1(1)(a): first, was Mrs Porcelli subjected by the two men to treatment on the ground of her sex (i e because she was a woman) and, secondly, if so, was she treated less favourably than the man with whom she fell to be compared would have been treated by these men? Lord Grieve gave a similar account of the issues in the case but identified three questions. The second was: Was the treatment meted out to the complainer less favourable than would have been meted out to a man in a similar position to her? Lord Grieve's version of the final question was: Was the treatment, or any material part of it, meted out to the complainer less favourable on the ground of her sex? This version clearly derives from the way that the Dean of Faculty had formulated the question on behalf of Mrs Porcelli: 1986 SC 137, 149. Lord Grieve rather thought that counsel for the education authority would have omitted the words "or any material part of it" from this question: 1986 SC 137, 148. Lord Brand said, 1986 SC 137, 152, that the primary question in the case was: Was the applicant less favourably treated on the ground of her sex than a man would have been treated?
188. This account of the issues in the appeal to the Court of Session shows that not only counsel for both parties but all three judges agreed: under section1(1)(a) a comparison required to be made, in terms of favourableness, between the treatment meted out to Mrs Porcelli and the treatment that would have been meted out to a man. The judges all proceeded to deal with the issue on that basis: 1986 SC 137, 146, 150 and 152. Therefore, even if their approach can be criticised, on no view is the decision authority for holding that sex discrimination in the form of sexual harassment can be established without using a male comparator. In so far as the reasoning in later decisions proceeds on the basis that Porcelli is authority for such a proposition, it is misconceived. I respectfully agree with Ward LJ's comments in Smith v Gardner Merchant Ltd  ICR 134, 148.
189. Although the decision in Porcelli has been influential, it is not satisfactory. The industrial tribunal had duly compared the way the two men had treated Mrs Porcelli with the way they would have treated a man whom they wished to drive out of the school. Their conclusion was that the men would have treated such a man just as unfavourably as Mrs Porcelli: while the specific nature of the unpleasantness might well have been different, it would have been no less unpleasant: 1986 SC 137, 144. The First Division could uphold the EAT's decision to reverse this crucial finding by the tribunal only if the finding was perverse or the tribunal had adopted the wrong legal test. They held that the tribunal had adopted the wrong test.
190. The Lord President explained his decision, which he had reached only after initial hesitation, in this way, at p 146:
The error which the Lord President claimed to detect in the tribunal's approach was their failure to notice that a material part of the men's campaign against Mrs Porcelli consisted in "sexual harassment". It is a little difficult to accept that the tribunal had failed to notice this aspect of the treatment of Mrs Porcelli when, in the passage that I have quoted from their reasons, they specifically mentioned that some of the treatment involved "a degree of sexual harassment". The Lord President went on to say that Parliament would have been particularly concerned to stamp out sexual harassment and so the treatment of Mrs Porcelli was to be seen as very different "in a material respect" from the treatment that would have been meted out to a male colleague. What the Lord President does here is to extract the "sexual harassment" element from the rest of the treatment of Mrs Porcelli and then go on to consider that element separately. He says that, on a proper application of section 1(1)(a) the tribunal ought to have asked themselves whether "in that respect", viz in respect of the sexual harassment, Mrs Porcelli had been treated less favourably than a man on the ground of her sex. The Lord President thought that, if they had asked themselves that question, the tribunal would have held that she had indeed been less favourably treated in that respect.
191. As one would expect, the Lord President does not seek to interfere directly with the tribunal's conclusion, on what was very much a matter for them as an employment jury, that the two men would have treated a man just as unfavourably as Mrs Porcelli. His approach is more subtle. What he does instead is to hold that the tribunal should have segregated the incidents with a sexual content from the rest and should have considered, separately, the way that the men treated Mrs Porcelli in those incidents. I regret that I am unable to agree with that approach which depends on reading section 1(1)(a) as if it spoke of the person treating the woman less favourably in a material respect. There is, of course, no warrant for adding any such words and, as Lord Grieve points out, counsel for the education authority had argued against it. But it is only if the provision contained some such words that a tribunal would be justified in dealing separately with the various items making up the alleged discriminator's treatment of the woman. In fact the section simply envisages a comparison between the way the alleged discriminator treats the woman and the way he treats or would treat a man. In the absence of any qualifying words, this must mean that a comparison is to be made between the whole of the alleged discriminator's treatment of the woman and the whole of his treatment of the man.
192. Any other interpretation leads to unacceptable results, as is evident indeed from the opinion of Lord Grieve. He says, 1986 SC 137, 150:
Lord Grieve is driven to the conclusion that, even though a man is treated infinitely more cruelly than a woman in the same situation, the tribunal may still require to conclude that, by reason of there being an element of sexually orientated treatment in the case of the woman, she has been less favourably treated than the man. This is a recipe for confusion.
193. Suppose a man loathes two colleagues, one a man, the other a woman, and decides to drive them out of their place of work. The man subjects the male colleague to a series of assaults which, on each occasion, leave him badly bruised and bleeding. On the other hand, the man considers that a man should not assault a woman and so he subjects the female colleague instead to bouts of gender-specific sexual abuse, no worse than that in Porcelli. The man treats both his male and female colleagues as he does on the ground of their sex. If asked which form of attack they would prefer to undergo if they had a choice, both the male and female colleagues might well say, however, that they would definitely opt for the sexual abuse. And, equally, the members of the tribunal might agree with them. On the approach in Porcelli, however, it would seem that the sexual abuse of the female colleague would not be compared with the assaults but would have to be treated separately. Moreover, since the man would not have used it against the male colleague, the conclusion would be that in this respect he had treated her less favourably on the ground of her sex. Counsel for the intervener, the Secretary of State for Trade and Industry, contemplated, however, that not only might the female colleague have a claim for sex discrimination but the male colleague might also have a claim on the basis that, by beating him up rather than subjecting him to sexual abuse, the man had treated him less favourably than his female colleague on the ground of his sex. I reject an interpretation of section 1(1)(a) which would mean that a tribunal might have to reach such a self-contradictory, not to say absurd, conclusion.
194. No words should be read into section 1(1)(a). The provision requires the employment tribunal to compare the way the alleged discriminator treats the woman with the way he treats or would treat a man. In any case where discrimination is established, this exercise must by definition involve comparing two forms of treatment which are different, whether in kind or in degree. It also involves the tribunal in evaluating the differences and deciding which form of treatment is less favourable. That is an exercise for the judgment of the tribunal, with its lay members using their experience and acting rather like a jury. Although the exercise may be more complicated, the same applies where the alleged discrimination takes the form of a course of conduct against the woman. The tribunal must compare that course of conduct as a whole with any action, or with the whole of any course of conduct, that the alleged discriminator pursues or would pursue against a man in similar circumstances. On the basis of that comparison the tribunal decides whether the alleged discriminator treats the woman less favourably on the ground of her sex than a man in similar circumstances.
Disposal of Ms Pearce's second ground of appeal