Smith v Gardner Merchant Ltd CA
Times Law Reports 23.7.1998

The Court of Appeal has held that a gay man, who claimed he had been discriminated against because he was a gay man, may have a claim for discrimination under the Sex Discrimination Act if he can show that a gay woman would have been treated differently.

Mr Smith claimed that a female colleague's attitude towards him "as a gay man" was sex discrimination. When that female colleague complained of what she described as Mr Smith's threatening and aggressive manner, Mr Smith was dismissed.

The Industrial Tribunal held that they had no jurisdiction to hear Mr Smith's complaint as it was based on sexual orientation which was not sex discrimination under the Act.
(Following Grant v South West Trains Ltd. ECJ, 1998 ICR 449). Mr Smith appealed and the Employment Appeal Tribunal agreed with the IT. They said discrimination on grounds of sexual orientation was not unlawful and said they did not need to consider whether Mr. Smith's treatment should be compared with that of a heterosexual or gay woman.

The Court of Appeal concluded that both the Tribunal and the Employment Appeal Tribunal had asked themselves the wrong question. They were mistaken in focusing on Mr Smith's homosexuality.

The Sex Discrimination Act required a comparison between Mr Smith's treatment as a man and the comparative treatment of a woman. The tribunal should have considered the vital question of whether or not discrimination against Mr Smith on the basis of his homosexuality might also have been discrimination against him as a man.

So far as Mr Smith's complaint that the allegations made against him would not have been made against a gay woman was concerned, the appropriate comparator was a gay woman. So far as his complaint that his female colleague was believed over him was concerned, the appropriate comparator was the female colleague herself.

The case was sent back to the tribunal who were directed to ask themselves the following questions.

What treatment had been given to Mr Smith?
If Mr Smith had been subject to homophobic abuse from the female colleague, whether that treatment was less favourable than would have been given to a homosexual woman in a similar position to him?

As to Mr Smith's additional complaint of sexual harassment, he would have to establish that it was the fact of his being male that caused the female employee to treat him in a way which was less favourable than she would have treated a gay woman.

Although this leaves open the chance that Mr. Smith's case may succeed, it is no answer to the issue of discrimination on grounds of sexual orientation if a gay man can only win a case by showing a gay woman won't have been treated better. The law is not only inadequate, it is illogical. It must be changed.