MacDonald v Advocate General for Scotland

This appeal concerned the scope of the Sex Discrimination Act 1975, in particular section 1(1)(a) and the comparator rule in section 5(3). The House held that the term "sex" in the 1975 Act means gender and does not encompass sexual orientation, so treatment motivated solely by sexual orientation does not amount to direct sex discrimination under that Act. When the reason for the treatment is sexual orientation the appropriate comparator must share the relevant circumstance (that is, be of the same sexual orientation) so as to ensure a like-with-like comparison under section 5(3).

Further, conduct described as "sexual harassment" falls within the Act only where the claimant can show the harasser treated them less favourably on the ground of their sex; the gender‑specific form of abusive conduct is evidence of motive but does not dispense with the need for the factual inference that the reason for the harassment was sex and not some other characteristic such as sexual orientation. The House also disapproved the broader approach in Burton v De Vere Hotels Ltd which treated an employer's failure to protect employees from third‑party abuse as necessarily amounting to discrimination without satisfying the statutory comparator test.

The Human Rights Act 1998 could not be relied upon in these proceedings to convert pre‑Act events into actionable discrimination in the context of the appeals before the court; section 22(4) does not treat subsequent steps in existing proceedings as fresh proceedings permitting reliance on Convention rights for pre‑Act conduct.

Background and parties.

• Mr Macdonald: an RAF officer dismissed after admitting he was sexually attracted to men. He claimed unlawful direct sex discrimination and sexual harassment under the Sex Discrimination Act 1975 and sought compensation.
• Ms Pearce: a school teacher subjected to sustained homophobic abuse by pupils. She claimed sex discrimination/sexual harassment by her employer and sought compensation and a finding of unlawful discrimination.

Procedural history. Both claims began at employment tribunals. In Macdonald the employment tribunal dismissed the claim, the Employment Appeal Tribunal allowed the appeal, but the Court of Session (Extra Division) restored the tribunal's decision; the case then went to the House of Lords. In Pearce the EAT dealt with preliminary issues and the Court of Appeal denied relief; the case was brought to the House together with Macdonald.

Relief sought and issues framed.

• (i) Whether treatment motivated by sexual orientation can be characterised as direct sex discrimination under section 1(1)(a) of the Sex Discrimination Act 1975;
• (ii) How to identify the appropriate comparator under section 5(3) where sexual orientation is central to the treatment complained of;
• (iii) Whether sexual harassment claims require a comparator or can succeed without one where the form of the harassment is gender‑specific;
• (iv) Whether an employer can be liable for harassment by third parties (pupils/guests) where the employer failed to take steps to prevent it (the Burton line of authority);
• (v) Whether the Human Rights Act 1998 could be relied on in these proceedings to remedy pre‑Act breaches.

Court’s reasoning.

• The House interpreted "sex" in the Act as gender; sexual orientation is a distinct characteristic. The 1975 Act was not aimed at discrimination on grounds of sexual orientation; forthcoming EC measures would address that gap.
• For a direct discrimination claim the tribunal must compare the claimant with a person of the opposite sex whose relevant circumstances are the same or not materially different (section 5(3)). Where sexual orientation was the reason for the treatment, the appropriate comparator must share that characteristic (eg, a homosexual woman for a homosexual man). Applying that approach, neither appellant showed less favourable treatment on the ground of sex.
• The form of harassment (gender‑specific language or sexualised conduct) is evidence from which a tribunal may infer sex‑based motive, but it does not eliminate the need to consider whether the reason for the harassment was the victim's sex rather than sexual orientation.
• The House criticised and disapproved the "control"/"good employment practice" test in Burton as wrongly treating employer omissions to protect employees from third‑party abuse as automatically constituting discrimination without satisfying the statutory comparator test.
• The Human Rights Act could not be used in these proceedings to render pre‑Act conduct actionable on appeal under section 22(4); proceedings are initiated when first brought and subsequent steps do not become fresh proceedings for that purpose.

Appeals dismissed. The House held that (1) "sex" in the Sex Discrimination Act 1975 refers to gender and does not include sexual orientation, so treatment motivated solely by sexual orientation is not direct sex discrimination under section 1(1)(a); (2) the comparator required by section 5(3) must share the relevant circumstances that explain the treatment complained of (so where sexual orientation is the reason the comparator will normally be of the same sexual orientation), and on the facts each appellant failed the comparator test; (3) gender‑specific form of harassment is evidence of motive but does not remove the need to show the reason for the harassment was sex; (4) the Burton approach to employer liability for third‑party harassment was wrongly reasoned and should be disapproved; and (5) the Human Rights Act did not permit reliance in these appeals on pre‑Act conduct via section 22(4).

Macdonald: Employment Tribunal dismissed claim (16 December 1999); Employment Appeal Tribunal allowed appeal and substituted a finding of unlawful discrimination and sexual harassment ([2001] ICR 1); Extra Division of the Court of Session allowed the Advocate General's appeal and restored the employment tribunal decision (2002 SC 1; [2002] ICR 174); House of Lords dismissed the appeal ([2003] UKHL 34). Pearce: Employment Tribunal found harassment but (save for one incident) treated as homophobic; Employment Appeal Tribunal and Court of Appeal considered the comparator and employer‑liability issues ([2000] ICR 920; [2001] EWCA Civ 1347; [2002] ICR 198); House of Lords dismissed the appeal ([2003] UKHL 34).