Pearce v Governing Body of Mayfield Secondary School

Direct discrimination under the Sex Discrimination Act 1975 requires less favourable treatment on the ground of sex. Where a lesbian employee suffers homophobic abuse, the statutory comparison is with a homosexual man in materially similar circumstances. Different gender-specific insults do not establish sex discrimination where the treatment and the employer’s response would otherwise have been the same.

Section 3(1) of the Human Rights Act 1998 cannot be applied on appeal to reinterpret legislation and impose liability for events, and tribunal decisions, preceding the provision’s commencement.

A lesbian science teacher suffered sustained homophobic abuse from pupils and retired after her health deteriorated. An employment tribunal held that nearly all the conduct fell outside the Sex Discrimination Act 1975. The Employment Appeal Tribunal dismissed her appeal and found that none of the pupils’ conduct constituted sex discrimination.

The teacher appealed. The principal issues were whether the abuse amounted to discrimination on grounds of sex; whether the Human Rights Act 1998 required a Convention-compatible interpretation of the 1975 Act; whether that interpretative duty applied retrospectively; and whether the school could be responsible for discriminatory conduct by pupils.

1. Appeal dismissed unanimously. The case was indistinguishable from Smith v Gardner Merchant [1998] IRLR 510, which bound the Court and the tribunals when they decided the case. The relevant comparison was between the treatment of the appellant and that of a homosexual male teacher in materially similar circumstances. There was no evidence that either the pupils or the school would have treated such a man more favourably. The abuse was directed at the appellant’s actual or perceived sexual orientation rather than at her because she was a woman. Sexual orientation was not, as a discrete ground, within the 1975 Act.

2. Per Hale LJ, the gender-specific language did not alter that conclusion. A male homosexual might have received different words of sexual abuse, but the treatment would have been of the same character. Judge LJ additionally held that the school’s response was not less favourable than its response would have been to equivalent abuse of a male teacher.

3. The interpretative obligation in section 3(1) of the Human Rights Act 1998 did not operate retrospectively so as to change the meaning governing events and tribunal decisions before 2 October 2000. Applying R v Lambert [2001] UKHL 37, the Court could not reinterpret the 1975 Act on appeal so as to impose liability where none previously existed.

4. Hale LJ observed, strictly obiter, that sustained homophobic abuse by a public authority was capable of violating article 8, read with article 14. She considered it possible to interpret the 1975 Act compatibly by treating sexuality as irrelevant when selecting the comparator under section 5(3), rather than by construing “sex” as including sexual orientation. Judge LJ was unpersuaded by those views, and Henry LJ considered it unnecessary to decide the point.

5. Hale LJ would have upheld the tribunal’s finding that the school had sufficient control to prevent or reduce the abuse and had subjected the teacher to a detriment. Judge LJ considered the educational context more complex than the shorthand of “control” suggested. Henry LJ agreed that, had sex discrimination been established, the issue should have been remitted for proper consideration of the test in Burton and Rhule v De Vere Hotels [1996] IRLR 596.

1. Court of Appeal: The teacher’s appeal was dismissed unanimously. The respondent received its costs; permission to appeal was refused, with enforcement of the costs order stayed pending consideration of a petition to the House of Lords.
2. Employment Appeal Tribunal: On 7 April 2000 it dismissed the teacher’s appeal and substituted a finding that none of the pupils’ conduct constituted sex discrimination. It would otherwise have remitted the issue of the school’s responsibility.
3. Employment tribunal: On 1 April 1999 it held, with one exception, that the conduct was not discrimination on grounds of sex. It found that the school would have been responsible for most of the abuse had it constituted sex discrimination.