Advocate General Elmer, delivering an opinion to assist the European Court of Justice reach a decision, comes down firmly in favour of lesbian and gay rights. The full case will be heard later this year or early 1998.
Lisa Grant is employed by South West Trains. The company rules give the common law spouses of staff travel subsidies worth £1,000 a year if they declare that they have had a meaningful relationship for two years or more. But the common law spouse has to be of the opposite sex.
Grant made this declaration but as her partner, Gillian Percy, is also a woman South West Trains refused Ms Percy the travel grant. Ms Grant's predecessor in the post was a man whose partner was female and so Ms Grant brought a case of equal pay using the male predecessor as her comparator.
Southampton Industrial Tribunal referred the case to the European Court of Justice (see Issue 3 of LELR: Express track just the ticket) essentially to ask whether South West Trains breached european equality law - Article 119 of the Treaty of Rome or the Equal Treatment Directive - and if South West Trains would have a defence if their intention was to confer a benefit on heterosexual relationships only. South West Trains argued that they should be entitled to treat homosexual relationships differently as they were not generally regarded by society as equivalent to marriage.
The Advocate Generalss view is that South West Trains have breached equal pay law and that discrimination on the basis of gender cannot be justified. He relies on the transsexual case, P v S (see Issue 1 of LELR: Brink of a breakthrough?) and he reiterates that European equality law prohibits discrimination based exclusively or essentially on gender. The principle is not confined simply to discrimination based on the fact that a person is of one or other sex.
P v S was a case under the Equal Treatment Directive and Elmer's view is that it has a corresponding significance in equal pay cases under Article 119 of the Treaty of Rome.
Article 119 must be construed as covering all cases where gender is objectively the fact causing an employee to be paid less.
Since South West Train's ticket regulations were conditional on a partner being of the opposite sex, gender was the only decisive criteria in the provision. Therefore the requirement for obtaining the concession depends upon the gender of both the employee and the cohabitee. It follows that the discrimination is based on sex, although not the specific sex of the employee concerned. It is unlawful discrimination.
But the Advocate General says that if travel grants had been paid only to married partners then european law would not be broken. Family law issues fall outside the scope of the EC Treaty and the European Court of Justice cannot intervene. Family law is for individual member states to decide. So a gap in the law remains.
As people of the same sex cannot legally marry in the UK the effect of benefits to only married partners has the same discriminatory effect against lesbians and gays. The Advocate General's view however is that this would not breach Article 119.
The Advocate General was also asked to consider whether gender discrimination could be justified on moral grounds. Elmer reiterates the principle that there is no question of justification in direct sex discrimination cases therefore it cannot arise. But even if this was a case of indirect discrimination, he cannot see how it could be justified.
The reality of South West Trains' position is that it intends to treat homosexuals differently to heterosexuals because it does not care for their lifestyle. That is a purely subjective circumstance, but indirect discrimination can only be justified by reference to objective circumstances.
Finally, the Advocate General asserts that Grant can rely directly on Article 119 of the Treaty of Rome as it will be directly applicable in national courts and that the ruling should be fully retrospective.