Macdonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) (Scotland) Pearce (Appellant) v. Governing Body of Mayfield School (Respondents)

Under the Sex Discrimination Act 1975, discrimination on grounds of sexual orientation is not, without more, discrimination on the ground of sex. Sex means gender. Where sexual orientation caused the treatment, the statutory comparison is with a person of the opposite sex who has the same sexual orientation.

The sexual or gender-specific form of harassment may support an inference that sex caused it, but does not dispense with the need to establish less favourable treatment on that ground. An employer is not liable for third-party harassment merely because good employment practice could have prevented or reduced it. The employer’s own act or omission must satisfy the statutory definition of discrimination.

These conjoined appeals concerned two employees who alleged direct discrimination under the Sex Discrimination Act 1975. Mr Macdonald was dismissed from the Royal Air Force under its former policy excluding homosexual service personnel. He also complained about intrusive questioning during security vetting. Ms Pearce, a lesbian teacher, suffered sustained homophobic abuse from pupils and alleged that her school had failed to protect and support her.

Mr Macdonald’s employment tribunal claim failed. The Employment Appeal Tribunal allowed his appeal, but the Extra Division of the Court of Session restored the tribunal’s decision: 2002 SC 1; [2002] ICR 174. Ms Pearce’s claim failed before the Employment Appeal Tribunal and the Court of Appeal: [2001] EWCA Civ 1347; [2002] ICR 198.

The central questions were whether sexual-orientation discrimination fell within direct sex discrimination, how the statutory comparator should be selected, whether gender-specific harassment required a comparator, and whether an employer could be liable for harassment by third parties.

1. Both appeals dismissed unanimously. Lord Nicholls delivered the leading speech. Lords Hope, Hobhouse, Scott and Rodger agreed that neither appellant established direct discrimination under the Sex Discrimination Act 1975.

2. Per Lords Nicholls, Hope, Hobhouse, Scott and Rodger, “sex” in section 1(1)(a) means gender and does not include sexual orientation. Gender and sexual orientation are distinct characteristics. The RAF policy applied equally to male and female homosexual personnel, while the pupils abused Ms Pearce because she was a lesbian. The treatment was therefore on the ground of sexual orientation rather than sex.

3. Per Lords Nicholls, Hope and Rodger, the reason for the treatment identifies the circumstances material to the comparison required by section 5(3). Where homosexuality caused the treatment, the comparator must be a homosexual person of the opposite sex. A heterosexual comparator would impermissibly change both gender and sexual orientation. Each appellant would have received substantially the same treatment as a homosexual person of the opposite sex and therefore failed to prove less favourable treatment.

4. Per Lords Nicholls, Hope, Hobhouse, Scott and Rodger, the 1975 Act did not create a free-standing prohibition of sexual harassment. The sexual or gender-specific form of conduct is evidence that the victim’s sex may have caused it, and in a clear case the inference may be immediate. It is not conclusive. The tribunal must still determine whether the complainant was treated less favourably on the ground of sex than an opposite-sex comparator in the same material circumstances. The broader reading attributed to Strathclyde Regional Council v Porcelli and adopted in British Telecommunications Plc v Williams was rejected.

5. The third-party liability issue in Ms Pearce’s appeal did not require decision. Nevertheless, Lords Nicholls, Hope, Hobhouse, Scott and Rodger concluded that Burton v De Vere Hotels Ltd was wrongly decided. An employer is not deemed to have discriminated merely because good employment practice could have prevented or reduced harassment by a third party for whom the employer is not vicariously liable. The employer’s own treatment must satisfy the statutory less-favourable-treatment requirement.

6. Per Lord Nicholls, with express agreement from Lord Hobhouse and broad agreement from the other Law Lords, section 22(4) of the Human Rights Act 1998 did not permit reliance on the pre-Act infringements. An appeal is ordinarily a step within the proceedings originally initiated, not newly brought proceedings. Nor was the public authority’s prosecution of an appeal an unlawful act under section 6(1).

• House of Lords: Both appeals were dismissed unanimously: [2003] UKHL 34.
• Court of Appeal: Ms Pearce’s appeal was dismissed: [2001] EWCA Civ 1347; [2002] ICR 198.
• Employment Appeal Tribunal: Ms Pearce’s appeal was dismissed: [2000] ICR 920.
• Extra Division of the Court of Session: By a majority, it allowed the Advocate General’s appeal in Mr Macdonald’s case and restored the employment tribunal’s decision: 2002 SC 1; [2002] ICR 174.
• Employment Appeal Tribunal: Mr Macdonald’s appeal was allowed and findings of unlawful discrimination and sexual harassment were substituted: [2001] ICR 1.
• Employment tribunals: Mr Macdonald’s claims were dismissed. Ms Pearce’s tribunal rejected the substantial homophobic-abuse claim, and its provisional view on the school’s liability was overturned on appeal.