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Session 2002 - 03
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Judgments - Macdonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) (Scotland), Pearce (Appellant) v. Governing Body of Mayfield School (Respondents)


SESSION 2002-03
[2003] UKHL 34
on appeal from: [2001] EWCA Civ 1347]




Macdonald (AP) (Appellant)


Advocate General for Scotland (Respondent) (Scotland)

Pearce (Appellant)


Governing Body of Mayfield School (Respondents)



The Appellate Committee comprised:

  Lord Nicholls of Birkenhead

  Lord Hope of Craighead

  Lord Hobhouse of Woodborough

  Lord Scott of Foscote

  Lord Rodger of Earlsferry




Macdonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) (Scotland)

Pearce (Appellant) v. Governing Body of Mayfield School (Respondents)

[2003] UKHL 34


My Lords,

    1. These appeals raise three points on the application of the Sex Discrimination Act 1975. In their speeches my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry have set out the facts of the two cases. I shall not repeat them.

Sex discrimination and sexual orientation

    2. Mr Macdonald was dismissed from the Royal Air Force because he was a homosexual. Ms Pearce was subjected to a sustained campaign of harassment while employed as a teacher at Mayfield School, because she was a lesbian. Each claims that this treatment comprised 'direct' sex discrimination, that is, discrimination as defined in section 1(1)(a) of the 1975 Act. Section 1(1)(a) provides that a person discriminates against a woman if 'on the ground of her sex he treats her less favourably than he treats or would treat a man'. The definition applies correspondingly in the case of discrimination against a man. Mr Macdonald's case is that, on the ground of his sex, his employers treated him less favourably than they would have treated a woman. Ms Pearce's case is the converse. She was less favourably treated, on the ground of her sex, than her employers would have treated a man

    3. Much of the argument in these two appeals was directed at identifying the appropriate persons with whom the appellants are to be compared when making the 'less favourable treatment' comparison. This issue was placed at the forefront of the appellants' submissions. The statute, they said, envisages a simple comparison of how the claimant was treated and how a person of the opposite sex would have been treated in the same circumstances. Had Mr Macdonald been a woman, he would not have been dismissed. He was dismissed because he was sexually attracted to men. A woman in his position, sexually attracted to men, would not have been dismissed. Ergo, it was said, he was less favourably treated than a woman in his position would have been, and he received this treatment because he was a man, that is, on the ground of his sex. Hence, his case satisfies the statutory definition of discrimination in section 1(1)(a).

    4. The opposing arguments focused on the need for a 'like with like' comparison, as underlined by section 5(3). To compare Mr Macdonald with a heterosexual woman is not to compare like with like. The appropriate comparator is a lesbian. She too would have been dismissed under the policy then prevailing in the armed forces. So Mr Macdonald did not receive less favourable treatment on the ground of his sex. Similar arguments were advanced in the converse case of Ms Pearce.

    5. My Lords, in the recent decision of your Lordships' House in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, paras 7 to 12, I noted that in cases of direct sex discrimination difficulties may arise in attempting to decide whether the employer treated a claimant woman less favourably than he would have treated a man without knowing the reason why the claimant was treated as she was. A similar flaw permeates the appellants' arguments in the present appeals. The reasons why Mr Macdonald was dismissed and Ms Pearce was harassed and humiliated are clear. But the appellants seek to put these reasons on one side and disregard them when identifying, as the first step in their argument, the appropriate comparator for this man and this woman.

    6. I prefer to approach the matter from the other end. I start by considering the reasons for the treatment of which complaint is made. Approached in this fashion the appeals become straightforward. Take Mr Macdonald's case. He was dismissed because he was a homosexual. This was pursuant to a policy adopted towards service personnel, of either sex, who were sexually attracted to persons of the same sex. This, and this alone, was the reason for Mr Macdonald's dismissal. Plainly, this was a discriminatory policy. But, equally plainly, it was a policy which discriminated between people solely on the ground of their sexual orientation, not on the ground of their sex. The policy was gender neutral, applicable alike to men and women and, moreover, applied alike to men and women.

    7. For this short reason Mr Macdonald's principal ground of appeal must fail. It must fail because it was common ground, and rightly so, that in the context of section 1 of the Act 'sex' means gender and does not include sexual orientation. Gender and sexual orientation are distinct personal characteristics. In the Sex Discrimination Act Parliament proscribed gender as an acceptable basis for discrimination in the circumstances specified in the Act. Since the Act was admittedly not aimed at sexual orientation, there can be no justification for interpreting the expression 'on the ground of her sex' in section 1 expansively so as to include cases which, in truth, are cases of discrimination solely on the ground of sexual orientation. Perceived deficiencies in this regard in the legislative scheme are soon to be made good, in the field of employment and to a limited extent elsewhere, when in the near future the government duly fulfils the United Kingdom's obligations under Council Directive 2000/78/EC of 27 November 2000.

    8. For the like reason so also must Ms Pearce's principal ground of appeal fail. The disgraceful way she was treated by some of the pupils at the school was because of her sexual orientation, not her sex. Ms Pearce accepted that the children would have pursued a comparable campaign of harassment against a homosexual man.

    9. For good measure I add that, having identified sexual orientation as distinct from sex, as the sole reason why Mr Macdonald was dismissed, there is no difficulty in identifying the appropriate comparator. Given the reason for Mr Macdonald's dismissal, it is readily apparent that the appropriate comparison is with a homosexual woman. Otherwise one would not be comparing like with like. Comparison with the treatment afforded to a heterosexual woman would not be a comparison where the circumstances of one case are materially the same as the other, as required by section 5(3). When Mr Macdonald is compared with a homosexual woman it is evident that he was not less favourably treated than she would have been. She also would have been dismissed. Similar reasoning in the case of Ms Pearce leads inexorably to the conclusion that in her case the appropriate comparator is a homosexual man and that she too was not treated less favourably than her male comparator would have been.

    10. I should also mention an argument based on the Race Relations Act 1976. The appellants sought to rely on the analogy of the restaurateur who refuses to serve mixed race couples. He will not admit a black man accompanied by a white woman, or a white man accompanied by a black woman. This, it was said, would be racial discrimination. It would be racial discrimination even though the restaurateur's policy applied equally to men of all races.

    11. I agree. That would be racial discrimination. But the analogy sought to be drawn with the present cases is unsound. A restaurateur who refuses to serve a black man because he is accompanied by a white woman would thereby be discriminating on 'racial grounds'. That phrase is amply wide enough to include such a case. This treatment would not cease to be discrimination on racial grounds because the restaurateur would equally discriminate on racial grounds in the converse situation of a white man and a black woman.

    12. This is to be contrasted with the present cases. An employer who dismisses a male employee because of his sexual orientation is not discriminating against him on the ground of his sex. The employer is discriminating against him on a ground which is outside the scope of the legislative prohibition.

    13. For this reason the appellants are not assisted by the Northern Ireland case of Smyth v Croft Inns Ltd [1996] IRLR 84, where a barman in a public house with Protestant customers in a 'loyalist' area of Belfast was constructively dismissed because he was a Roman Catholic. That was rightly held to be discrimination 'on the ground of religious belief' within the meaning of section 16 of the Fair Employment (Northern Ireland) Act 1976, as amended by the Fair Employment (Northern Ireland) Act 1989. The employer's conduct did not cease to be discrimination on that ground because the employer would have treated in the same way a Protestant barman in a public house with Roman Catholic customers. As Sir Brian Hutton LCJ said, that showed only that the employer would be guilty of religious discrimination against both barmen: see [1996] IRLR 84, 85-86, paragraph 28.

Sexual harassment

    14. Ms Pearce advanced her claim on an alternative basis. She was subjected to a campaign of gender specific harassment. She was vilified in terms which would not have been used against a man. This, it was submitted, is capable of amounting to less favourable treatment on the ground of her sex without the need to identify a male comparator and regardless of the reason for the campaign. Mr Macdonald advanced a similar argument regarding the intrusive questioning he suffered at an interview with his superior officer.

    15. The starting point here is to note that the expression 'sexual harassment' is ambiguous. The adjective 'sexual' may describe the form of the harassment; for instance, verbal abuse in explicitly sexual terms. Or it may be descriptive of the reason for the harassment; for instance, if a male employee makes office life difficult for a female employee because he does not wish to share his office with a woman. It is only in the latter sense that, although not as such prohibited by the Sex Discrimination Act, sexual harassment may nevertheless be within the scope of the Act as less favourable treatment accorded on the ground of sex. A claim under the Act cannot get off the ground unless the claimant can show she was harassed because she was a woman. A male employee may make office life difficult for a female employee, not because she is a woman, but because he objects to having anyone else in his office. He would be equally unwelcoming to a male employee. Harassment of a woman in these circumstances would not be sex discrimination.

    16. In some cases there are suggestions of a different approach. It has been suggested that if the form of the harassment is sexual, that of itself constitutes less favourable treatment on the ground of sex. When the gender of the victim dictates the form of the harassment, that of itself, it is said, indicates the reason for the harassment, namely, it is on the ground of the sex of the victim. Degrading treatment of this nature differs materially from unpleasant treatment inflicted on an equally disliked male colleague, regardless of equality of overall unpleasantness: see Lord President Emslie in Strathclyde Regional Council v Porcelli 1986 SC 137, 145-146; [1986] ICR 564, 568-570. Because the form of the harassment is gender specific, there is no need to look for a male comparator. It would be no defence to a complaint of sexual harassment that a person of the opposite sex would have been similarly treated: see Morison J in British Telecommunications Plc v Williams [1997] IRLR 668, 669.

    17. In agreement with Ward LJ in Smith v Gardner Merchant Ltd [1999] ICR 134, 147-148, I respectfully think some of these observations go too far. They cannot be reconciled with the language or the scheme of the statute. The fact that the harassment is gender specific in form cannot be regarded as of itself establishing conclusively that the reason for the harassment is gender based: 'on the ground of her sex'. It will certainly point in that direction. But this does not dispense with the need for the tribunal of fact to be satisfied that the reason why the victim was being harassed was her sex. The gender specific form of the harassment will be evidence, whose weight will depend on the circumstances, that the reason for the harassment was the sex of the victim. In some circumstances the inference may readily be drawn that the reason for the harassment was gender based. A male employee who subjects a female colleague to persistent, unwelcome sexual overtures may readily be inferred to be doing so on the ground of her sex.

    18. In the case of Ms Pearce the abuse was in homophobic terms: 'lezzie', 'lemon', 'lesbian shit' and the like. The natural inference to be drawn from this form of abuse is that the reason for this treatment was Ms Pearce's sexual orientation, not her sex. Further, as the employment tribunal noted, Ms Pearce did not put forward any evidence or argument that a male homosexual teacher would have been treated any differently either by the pupils or by the school. This being so, Ms Pearce did not establish that the harassment was on the ground of her sex. Her appeal on this second ground also must fail.

    19. Similarly with Mr Macdonald: the evidence, accepted by the employment tribunal, was that faced with a lesbian female officer Wing Commander Leeds would have conducted the vetting interview on very much the same lines. The sole reason for the intrusive nature of the questioning was Mr Macdonald's sexual orientation.

    20. As with sexual orientation, so with sexual harassment, the law is in the process of being changed. Here again, however, this change in the law will come too late to assist the appellants. The Equal Treatment Directive (Council Directive 76/207/EEC) has recently been amended by Council Directive 2002/73/EC of 23 September 2002. In article 2 of the Equal Treatment Directive as amended, sexual harassment is specifically identified by reference to the form of the harassment and is, as such, prohibited. Sexual harassment is defined as 'any form of unwanted verbal, non-verbal or physical conduct of a sexual nature' having 'the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment'. Sexual harassment, as so described, is deemed to be discrimination on the grounds of sex. Thus sexual harassment is treated as an independent, free-standing ground of complaint. Member States are required to give effect to the amendments to the Equal Treatment Directive by 5 October 2005.

Human Rights Act 1998

    21. It is common ground that the dismissal and other treatment accorded to Mr Macdonald infringed his rights under the European Convention on Human Rights. The Advocate-General for Scotland accepted that this treatment violated Mr Macdonald's rights under article 8 (respect for private life) considered separately and in conjunction with article 14 (discrimination). This treatment occurred in 1996 and 1997, some time before the Human Rights Act 1998 was enacted or came into force. Despite this Mr O'Neill QC submitted that in these proceedings his client is able to rely upon the Human Rights Act.

    22. Mr O'Neill's primary submission was that the appeal to the Court of Session, lodged by the Ministry of Defence against the decision of the Employment Appeal Tribunal, itself constituted 'proceedings brought by .. a public authority' for the purposes of section 22(4) of the Act. Therefore, in accordance with section 22(4), Mr Macdonald may rely upon his Convention rights even though the discriminatory events took place before 2 October 2000.

    23. I do not agree. I leave aside the fact that the appeal before the House is an appeal brought by Mr Macdonald, not an appeal brought by a public authority. Even leaving this feature wholly on one side, in my view this submission is misconceived. Section 22(4) sets out a consequence attaching to a particular type of proceedings. On a natural reading of the subsection, proceedings are brought when they are first initiated: by the issue of a writ, or making a discrimination claim, or whatever. Subsequent steps in the proceedings, including an appeal, are all part of the proceedings for the purposes of section 7(1)(b) of the Act. They are directed towards the proper disposal of the proceedings. In the ordinary course they are not themselves separate proceedings for the purpose of section 22(4). To treat them as separate proceedings would lead to irrational and capricious results. It would mean that the law falling to be applied to a single set of proceedings would vary depending on the adventitious circumstance of which party was the appellant. In proceedings initiated against a public authority section 22(4) would not avail the claimant at the trial of his claim by a court of first instance. If the court of first instance reached a correct conclusion, adverse to the claimant, that would be the end of the matter. But if the trial judge erred, and the public authority defendant appealed, the rules would change and on the hearing of the appeal the claimant could now rely upon pre-Act infringements of his human rights. He could rely on these pre-Act infringements to determine the outcome of the proceedings initiated by him. I do not believe this is the proper interpretation of section 22(4). On this I respectfully disagree with the contrary view expressed by Lord Prosser in the Inner House: [2002] SC 1, 7, para 15.

    24. Nor can I accept Mr O'Neill's alternative submission that, given the admitted infringements of Mr Macdonald's human rights, prosecution of an appeal by the Ministry of Defence after the Human Rights Act came into operation constituted an 'act' prohibited by section 6(1). A public authority does not act unlawfully by defending proceedings which are based on pre-Act events when the statute itself provides that a person cannot rely upon pre-Act events in proceedings brought by him against a public authority. An appeal brought by a public authority in such proceedings stands on the same footing.

    25. For these reasons, as well as the reasons given by Lord Hope of Craighead and Lord Rodger of Earlsferry, with which I am in broad agreement, I would dismiss both appeals.

The third issue

    26. On this footing the third issue, which affects only Ms Pearce, does not call for decision. This issue concerns an additional hurdle Ms Pearce would have to cross if her claim were to be successful. Her claim is against the school as her employer. But the campaign of abuse mounted against her was a campaign by pupils of the school, not by members of the school staff. So Ms Pearce is not assisted by section 41(1) of the Sex Discrimination Act. This provides that, subject to the defence set out in section 41(3), acts done by an employee in the course of his employment are to be treated as done also by his employer. Nor were the pupils acting as agents of the school, so as to give rise to liability under section 41(2).

    27. Mr Emmerson QC sought, nevertheless, to fix the school with liability. The school, he submitted, could and should have taken steps to shield Ms Pearce. Its failure to do so constituted sex discrimination. Reliance was placed on the decision of the Employment Appeal Tribunal in Burton v De Vere Hotels Ltd [1997] ICR 1. In the present case the employment tribunal accepted this submission.

    28. This submission, although not calling for decision, raises a point of some general importance. In Burton v De Vere Hotels Ltd [1997] ICR 1 two black waitresses, clearing tables in the banqueting hall of a hotel, were the butt of racist and sexist jibes made by a guest speaker entertaining the assembled all-male company at a private dinner party. The Employment Appeal Tribunal held that the employer of the waitresses had racially discriminated against the waitresses. Had the assistant managers in charge for the evening been properly instructed, the two young women would not have suffered embarrassment. They could, and should, have been withdrawn from the room.

    29. This is not a satisfactory decision. Lindsay J, sitting as the President of the Employment Appeal Tribunal, has said the decision may be 'vulnerable': see Hussain v HM Prison Service (8 May 2002, unreported). Viewed in the broadest terms, the Burton decision has much to commend it. There is, surely, everything to be said in favour of a conclusion which requires employers to take reasonable steps to protect employees from racial or sexual abuse by third parties. But is a failure to do so 'discrimination' by the employer? Where the Burton decision is, indeed, vulnerable is that it treats an employer's inadvertent failure to take such steps as discrimination even though the failure had nothing to do with the sex or race of the employees. In this crucially important respect the decision gives insufficient heed to the statutory discrimination provisions. An essential element of 'direct' sex discrimination by an employer is that, on the grounds of sex, the employer treats the employee less favourably than he treats or would treat an employee of the opposite sex. Similarly with 'direct' racial discrimination: the 'less favourable treatment' comparison is an essential ingredient of the statutory wrong: see section 1(1)(a) of the Race Relations Act 1976. Unless the employer's conduct satisfies this 'less favourable treatment' test, the employer is not guilty of direct sex or racial discrimination. In making this comparison acts of persons for whose conduct an employer is vicariously responsible are to be attributed to the employer. It is otherwise in respect of acts of third parties for whose conduct the employer is not vicariously liable.

    30. With this in mind, the reasoning in the Burton decision is unsatisfactory in two important respects. First, the tribunal proceeded on the basis that harassment which is race specific in form is itself less favourable treatment on racial grounds. In the case of racial harassment of a black person there is no need to show that a white person would have been treated differently. Counsel's concession on this point was based on an apparently widespread misinterpretation of the decision in Strathclyde Regional Council v Porcelli [1986] SC 137; [1986] ICR 564. This is a point I have already discussed.

    31. Secondly, the harassment in Burton was committed by third parties for whose conduct the employer was not vicariously responsible. Despite this, the tribunal seems to have proceeded on the basis that the racial harassment of the waitresses by the speaker and some of the guests constituted discrimination on the part of the employer, and that the only issue left outstanding on the appeal, if the discrimination claim were to succeed, was whether the employers had by active or passive conduct subjected the waitresses to racial harassment by the speaker and the offending guests. This cannot be right. In order to succeed the two Caribbean waitresses had to prove discrimination by their employer.

    32. On the sole outstanding issue before the tribunal Smith J said, at [1997] ICR 1, 10, para 38:

    "The [employment] tribunal should ask themselves whether the event in question was something which was sufficiently under the control of the employer that he could, by the application of good employment practice, have prevented the harassment or reduced the extent of it. If such is their finding, then the employer has subjected the employee to the harassment." (Emphasis added)

    33. This decision, I have to say, seems to have proceeded on altogether the wrong footing. 'Subjecting' an employee to 'detriment' is one of the circumstances in which it is unlawful for an employer to 'discriminate' against an employee: section 4(2)(c) of the Race Relations Act 1976. Thus section 4(2)(c) is not satisfied unless the conduct constituted 'discrimination'. To constitute 'discrimination' the definitions in sections 1 or 2 of the Act must be met.

    34. I turn to the facts in the Burton case. The employment tribunal found that although the hotel manager should have instructed his assistant managers to protect the waitresses from the predictably offensive content of the comedian's speech, the manager's failure to do so was not 'less favourable treatment on racial grounds'. His failure to give any thought to what might happen to the waitresses that night was not connected with their ethnic origin. By implication, the tribunal thought the employer would have treated white waitresses in the same way: see [1996] IRLR 596, 598, paragraph 16.

    35. As I see it, these findings negatived racial discrimination on the part of the employer. The hotel's failure to plan ahead properly may have fallen short of the standards required by good employment practice, but it was not racial discrimination. I consider the case was wrongly decided by the Employment Appeal Tribunal, as also was the comparable case of Go Kidz Go Ltd v Bourdouane (unreported) (Employment Appeal Tribunal, 10 September 1996).

    36. Had the factual position been otherwise, and had the employer permitted exposure of the black waitresses to racist remarks by a third party when it would not have treated white employees similarly in a corresponding situation, this would have been a case of racial discrimination. This conclusion would follow from the difference in treatment afforded to black waitresses on the one hand and the treatment which would have been afforded to white waitresses on the other hand. In such circumstances the employer would be liable without it being necessary, or appropriate, to have recourse to 'good employment practice'. Indeed, I doubt whether the concept of good employment practice has a role when determining liability in this type of case. This concept, and that of the hypothetical reasonable employer, need to be handled with much care in the context of the discrimination legislation: see, as an illustration, Glasgow City Council v Zafar [1997] 1 WLR 1659, 1663, per Lord Browne-Wilkinson:

    "The fact that … an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee "less favourably" for the purposes of the Act of 1976."