MacDonald v Advocate General for Scotland
Pearce v Governing Body of Mayfield Secondary School [2003] IRLR 512
The House of Lords has held in these cases that the Sex Discrimination Act 1975 does not protect discrimination on the grounds of sexuality. Worse still is that they have also conclusively overturned the previous excellent decision of the EAT in Burton v De Vere Hotels Ltd [1996] IRLR 596 and concluded that sexual harassment is not unlawful discrimination in itself but requires a comparison with how a man was or would have been treated.
Mr Macdonald was discharged from the RAF after having admitted to being gay. Ms Pearce was driven to resign from her job as a teacher after a vicious campaign of anti-lesbian abuse from pupils after she came out. Both cases predated implementation of the Human Rights Act 1998, which therefore could not directly assist them in obtaining redress. The new Employment Equality (Sexual Orientation) Regulations 2003 do not come into force until 1 December 2003. As a result, both applicants had to seek to rely on the Sex Discrimination Act 1975 to obtain a remedy.
Conceding that the words "on the grounds of sex" in the Sex Discrimination Act 1975 did not include "on the grounds of sexual orientation", the two Applicants broadly advanced the same argument before the House of Lords. Their case was that Mr Macdonald was discharged from the RAF for being attracted to men. A woman in the same circumstances would not be discharged for being attracted to men. A female comparator would therefore be treated more favourably because she is a woman and not a man. The fact that Mr Macdonald was gay and the comparator heterosexual was to do with motive, and was not a relevant factor in making the like-for-like comparison. In the same way, Ms Pearce's male comparator who would be treated more favourably would be someone attracted to women and so would not be subjected to harassment.
The House of Lords conclusively rejected this argument. It found that the sexual orientation of the applicants was a relevant factor that had to be taken into account in making a like-for-like comparison. In the above examples, the reason for the treatment was the sexual orientation. For Mr Macdonald, therefore, his female comparator also had to be gay, otherwise the comparison would not involve comparing like with like. A gay male applicant must show that he had been treated less favourably that a lesbian comparator. That simply was not the evidence here which was that a gay female would also have been discharged. The situation was the same, in reverse, for Ms Pearce. This fundamental aspect of the case could therefore not succeed.
The case of Burton v De Vere Hotels Ltd has frequently been relied upon by applicants in harassment cases, such as Ms Pearce, where the harasser is not an employee of the applicant's employer. Instead, for example, they may be an external third party. The usual vicarious liability provisions of the Sex Discrimination and Race Relations Acts do not apply because the applicant and harasser are not (even broadly) employed by the same employer. Unless the applicant's employer can be fixed with liability, the applicant is without a remedy.
Liable for Bernard Manning
In the Burton case, the hotel owner, who employed the black female applicant waitresses, was held liable for the racist offence caused by the jokes of Bernard Manning who had been engaged to entertain the guests in the hotel restaurant. In adopting a purposive interpretation that emphasised the need to protect employees in these circumstances, the EAT in Burton concluded that the issue that had to be determined was whether the incidents were "sufficiently under the control of the employer that he could, by the application of good employment practice, have prevented the harassment." By this route, applicants harassed by third parties could normally obtain redress against their own employers whom they argued could have controlled the situation but did not. It was in this way that Ms Pearce had argued that the school, although not the employer of the pupils, were liable in failing to control their conduct.
The House of Lords did not agree. They pointed out that a test of failing to apply good employment practice had no legal foundation in the Sex Discrimination Act in establishing liability in harassment cases. The Act instead refers to an employer either being liable for the acts of an employee by reason of vicarious liability, or themselves treating a woman less favourably than a man on the grounds of sex (or a man less favourably than a woman). Neither of these had happened either in the case of Burton, nor Ms Pearce. The pupils in Ms Pearce's school were not employed by them, and the school did not fail to control the pupils by reason that Ms Pearce was female. The school would have treated a gay male employee in the same way, just as the hotel owners in the Burton case did not fail to control Mr Manning by reason that the waitressing staff were black or female. There had been no less favourable treatment and Burton was therefore wrongly decided.
The sad truth about this aspect of the House of Lords decision is that people who are harassed by third parties not in the same employment as them, often the most vulnerable people employed in fragmented workplaces, are now unlikely to be able to invoke the Sex Discrimination Act to protect themselves against discrimination, and harassment in particular. So a principle that functioned well, reinforced good employment practice, and protected workers in line with the intention of the Act, is now no longer available. So workers harassed, for example, by customers, or pupils, or trainers, or people who are seconded from other employment, may be left with no remedy unless they can show that, had they been of the other gender or another race, then they would have been provided with more protection and treated more favourably by their employers. This defies any sense of the purpose behind the legislation.
The aspect of the House of Lords decision dealing with sexual harassment is even more retrogressive. Back in 1986, the Court of Session in Strathclyde Regional Council v Porcelli 1986 IRLR 134 took the view that to establish a case of sexual harassment it was not necessary to show that a man would have been treated differently; what had to be shown was that the gender of the applicant determined the nature of the harassment. Therefore, if the harassment took a form dictated by the applicant's gender, that was enough to establish a breach of the Sex Discrimination Act.
This principle has been invoked on countless occasions, illustrating the problems caused by the absence of any definition of harassment in the Sex Discrimination Act. Indeed, it is precisely because sexual harassment tends to be meted out to women and women alone that it is hard to envisage who the male comparator would be. As the court in the Porcelli case explained their decision, harassment was "a particularly degrading and unacceptable form of treatment that it must be taken to have been the intention of Parliament to restrain." But such a purposive approach again finds no favour with the House of Lords, which reiterates the need for a comparator. It is not sufficient to show harassment and no more. Instead, the applicant has to show that a man in similar circumstances would be treated more favourably.
The otherwise baleful effects of this House of Lords decision have to some extent been overtaken by events. If someone is discriminated against on the grounds of sexual orientation after 1 December 2003, they now have a specific remedy under the new Employment Equality (Sexual Orientation) Regulations 2003. Further, in relation to racial harassment, the new definition of harassment, which does not need a comparator, came into force on 19 July 2003. For sexual harassment cases, the time scale is less helpful. The new Revised Equal Treatment Directive includes a definition of sexual harassment which does not need a comparator, but this does not have to be implemented in the UK until 5 October 2005. At present, there is no new legislation that can unpick the demise of the Burton case.
The position for workers who seek redress for discrimination has once again been set back by this House of Lords decision. The overall impression at the moment is that workers are being given rights by the European Directives by one hand, but are having previously well established principles of equality law taken away by the UK courts by the other.