Smith v Gardner Merchant Ltd

Discrimination motivated by sexual orientation is not, without more, discrimination on the ground of sex under the Sex Discrimination Act 1975. It may nevertheless amount to direct sex discrimination where a homosexual man is treated less favourably than a homosexual woman would be treated.

The tribunal must identify the claimant’s treatment, make the comparison required by section 5(3), and ask whether, but for the claimant’s sex, the treatment would have occurred. In a complaint of homophobic abuse, homosexuality may be a relevant circumstance requiring comparison with a homosexual woman. Sexual harassment is not exempt from that statutory comparison, although gender-specific conduct may make the factual answer clear.

The appellant, a homosexual barman, was dismissed for alleged gross misconduct after complaints by a female colleague, Ms Touhy. He alleged homophobic abuse by her and alleged that his employer believed her allegations and dismissed him rather than her.

The Industrial Tribunal determined a preliminary issue on an assumed basis that he had been harassed and treated less favourably because of his sexual orientation. It held that discrimination on that ground fell outside the Sex Discrimination Act 1975. The Employment Appeal Tribunal upheld that decision.

On appeal, the appellant abandoned his argument that sexual orientation itself was included within sex discrimination. The remaining issue was whether the statutory comparison was still required and, for each distinct complaint, who the proper female comparator was.

1. Appeal allowed and case remitted. Lord Justice Ward gave the leading judgment. Sir Christopher Slade agreed with his reasoning. The Industrial Tribunal and Employment Appeal Tribunal erred by treating the claim as necessarily outside the Act once they concluded that sexual orientation was not an aspect of sex.

2. Under sections 1(1)(a) and 5(3) of the Sex Discrimination Act 1975, the tribunal must determine the actual treatment, compare it with the treatment of a woman in the same or not materially different relevant circumstances, and determine whether the treatment would have occurred but for the claimant’s sex. Sexual orientation alone is insufficient, but treatment arising from it may also discriminate on the ground of sex.

3. For the allegation that Ms Touhy subjected the appellant to homophobic abuse, the relevant circumstance was his homosexuality. The proper comparator was therefore a homosexual woman, not a heterosexual woman. The majority rejected the submission that sexual harassment removes the need for the statutory comparison. Gender-specific harassment will often make it factually obvious that treatment was less favourable, but it creates no separate rule of law.

4. For the distinct complaint about the disciplinary process and dismissal, the appellant had identified an actual comparator: Ms Touhy. The tribunal had to decide whether it treated him less favourably than her and, if so, whether his sex was an effective cause of that treatment.

5. Lord Justice Beldam agreed that the appeal should be allowed and the matter remitted. He differed from the majority on the first complaint, considering sexual orientation irrelevant to the comparison in a sexual-harassment claim. The majority view was that the tribunal must first find the disputed facts, including whether Ms Touhy acted in the course of her employment, before applying the statutory tests.

• Court of Appeal (Civil Division) Allowed the appeal and remitted the matter to the Industrial Tribunal for findings of fact and determination under the Sex Discrimination Act 1975.
• Employment Appeal Tribunal On 13 February 1996, dismissed the appellant’s appeal and upheld the Industrial Tribunal’s preliminary ruling.
• Industrial Tribunal Dismissed the claim after ruling, on an assumed factual basis, that discrimination on grounds of sexual orientation was outside its jurisdiction under the Act.