P v S and Cornwall County Council [1996] IRLR 347 (ECJ)
Smith v Gardner Merchant Limited [1996] IRLR 342 (EAT)

Rights for lesbians and gay men at work have been in the media spotlight. It is an area of hot controversy on both sides of the Atlantic and increasing action by union members. In the UK being out and proud does though have its pitfalls when it comes to discrimination at work.

Our employment law does not provide any express rights for lesbian and gay workers. There is no legislation prohibiting discrimination on grounds of sexuality and the courts have given little cause for optimism.

A recent decision in Europe may chart a more positive course, although it must still be contrasted with recent cases in our own jurisdiction.

In the case of Smith v Gardner Merchant the employee had been harassed at work because he was gay. In dismissing the case the EAT emphasised that in UK and European law, there was prohibition of discrimination on grounds of sex, but none on sexuality. The EAT relied on the case involving gay service personnel to say that the European Treaty and the Equal Treatment Directive did not cover discrimination on grounds of sexuality.

The EAT rejected Mr Smith's argument that he had been subjected to less favourable treatment and, as a man sexually attracted to men, his treatment should be compared to how a heterosexual woman would have been treated. The argument that a gay man is a gender specific category, meaning that to discriminate against a gay man is necessarily to discriminate on grounds of sex, was also rejected.

The EAT went on to reject an analogy with pregnant workers - a gender-specific category who can pursue claims if they are treated less favourably because of their pregnancy. In the EAT's view homosexuality can apply to either sex and is not "gender-specific".

Smith was decided before the European Court decision in the case of P v S and Cornwall County Council. where the Court said it was a breach of the Equal Treatment Directive to discriminate against a male to female transsexual for a reason related to the change of sex or gender reassignment.

The European Court said the scope of the Directive cannot be confined simply to discrimination based on the fact that a person is of one or other sex. Discrimination based on gender reassignment is based essentially on the sex of the person concerned and it is therefore unlawful to treat a male to female transsexual less favourably than a man.

In terms of UK law, this gender reassignment involves a comparison of treatment between two people who are legally "men".

Logically the European Court decision should also apply to discrimination on grounds of sexuality. This is likely to be the approach in Europe as the European Court went on to say that to tolerate discrimination on gender reassignment would be "a failure to respect the dignity and freedom to which [a worker] is entitled and which the Court has a duty to safeguard".

Opinion in Europe is hardening against discrimination on grounds of sexuality. The new Parental Leave Directive (see article this issue) contains a clause that when EU countries pass laws to implement the Directive they must "prohibit any discrimination based on race, sex, sexual orientation, colour, religion or nationality". The European Commission is keen to ensure a similar non-discrimination clause in all future employment law directives.