Secretary of State for Defence v MacDonald [2001] IRLR 431
The struggle for equality for gay men and lesbian women in employment must continue. The Scottish Court of Session (equivalent to the English Court of Appeal) has overturned the earlier decision that discrimination on grounds of sexual orientation falls within the definition of sex discrimination under the Sex Discrimination Act 1975 (SDA).
Ministry of Defence v MacDonald arose as a result of the compulsory resignation from the air force of Mr Macdonald prior to the removal of the ban on gays in the military. By contrast with those who had previously challenged the ban, MacDonald proceeded by way of a challenge under the SDA. Although there was authority to the effect that the SDA did not prohibit discrimination on grounds of sexual orientation, these cases had been before the Human Rights Act 1998 (HRA).
The Scottish Employment Appeal Tribunal allowed Macdonald's appeal on the (mistaken) basis that the European Convention on Human Rights treated sexual orientation as 'sex' with the effect that the word 'sex' in the SDA was ambiguous and, accordingly, could be construed so as to give effect to the UK's Treaty obligations to protect the applicant from discrimination on grounds of sexual orientation.
The Ministry of Defence appealed against EAT's decision. By this time the HRA was in force which meant the Court was bound to read and give effect to primary legislation, such as the SDA, in a way which is compatible with the Convention rights (s3). Further, as a public authority, the Court was bound not to act in a way which was incompatible with a Convention right (s6). Their Lordships accepted that such discrimination contravened the European Convention on Human Rights. But the Court was unanimous in the view that 'sex' for the purposes of the SDA referred only to the 'male sex and the female sex, and the simple categorisation of people as men or women', rather than to 'gender or sexual orientation'.
Having defined the meaning of sex, the task was to establish whether there has been less favourable treatment on grounds of sex. That requires a comparison of the cases of people of different sex where 'the relevant circumstances in the one case are the same, or not materially different in the other' (section 5(3) SDA). The Ministry of Defence had argued that the appropriate female comparator in this case was a lesbian woman who would have been subject to the same treatment as MacDonald himself. Macdonald argued that the appropriate comparison was with a heterosexual woman - so a man wanting or having a male partner should be compared with a woman wanting or having a male partner.
If the "relevant circumstances" were wanting or having a male partner, less favourable treatment and unlawful sex discrimination was made out on the facts. But if the relevant circumstances were wanting or having a same sex partner, ther was no less favourable treatment on grounds of sex.
The Court of Sessions was divided, with a majority (two Judges) taking the latter view and preferring to read the applicant's sexual 'orientation' (i.e., his homosexuality, as distinct from the bare fact of his attraction to men) into the circumstances 'relevant' for the purposes of s5(3). They were not satisfied that s3 of the HRA required that the SDA be interpreted to extend to the prohibition of discrimination on grounds of sexual orientation as well as gender.
The decision in MacDonald may be criticised because of the approach taken by the Court to its interpretation both of the Human Rights Act and the Sex Discrimination Act. In another HRA case (R v A) the House of Lords took a very robust approach to the application of s3, utilising it to subvert the intention of the legislature where the legislation at issue was itself seen to interfere with individual rights.
In McDonald, the SDA merely failed to provide a remedy against interference whether by a public or private employer. The decision, should it stand, illustrates the operation of entrenched rights as constraining, rather than requiring, state action. Such rights operate against action taken by the State to ameliorate disadvantage - in R v A, the House of Lords undermined legislation directed specifically towards eradicating the impact of sexist assumptions on rape trials. But they are less effective in requiring a positive response to action taken by others.
It is arguable that the Court of Sessions misapplied the specific model of entrenchment embraced by the HRA, coupled with the imposition by the European Convention organs of some degree of positive obligation on the state to protect Convention rights from interference by non-state actors. Confronted with a case brought under the SDA, it can be argued that the court is obliged to interpret the SDA itself 'so far as it is possible to do so' to prohibit such discrimination.
The second point raised concerns s5(3) SDA. Here the majority decision is the latest in a line of cases in which that provision (and its Race Relations Act equivalent) has been used to as to undermine the ability of the SDA (and the RRA) to prohibit direct discrimination. The question whether a woman and her comparator are in the same 'relevant circumstances' is at the very heart of the problem of equality. Unless it is taken that the circumstances 'relevant' to the comparison do not themselves differentiate directly between men and women, any less favourable treatment which could be rationalised by reference to any difference between the man and the woman compared would be defined as 'not discrimination'.
S5(3) has given rise to difficulties in relation to sex-specific clothing and appearance rules, (such as mandatory silly hats for female nurses and pony tail bans for men) as well as in sexual orientation cases. The courts generally accept that a 'sex appropriate dress code' can be a 'relevant circumstance' within s5(3), and find discrimination only if the terms of the code, as they apply to one sex, are significantly less favourable than those which apply to the other (Schmidt v Austicks Bookshops [1978] ICR 85). 'Less favourable treatment' has, on occasion, been found by tribunals in the dress-code context but such decisions are rare. It is to be regretted that the Court of Sessions did not seize the opportunity afforded it in MacDonald to give effect to the purpose of the SDA - the eradication of sex discrimination - by refusing to accept as relevant for the purposes of s5(3) a circumstance itself tainted by sex. Had it done so, the logic of the decision would have reached beyond the issue of sexual orientation discrimination and beyond.