Macdonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) (Scotland), Pearce (Appellant) v. Governing Body of Mayfield School (Respondents)
37. Some will regard this as a deficiency in the structure and scope of the discrimination legislation. I have already noted the desirability of employers taking reasonable steps to protect employees from sexual and racial harassment by third parties. But the discrimination legislation is targeted in precise terms. A fundamental feature of this aspect of the legislation is that attention is focused on the conduct of the particular employer, not the conduct of a reasonable employer. Further, the circumstances where an employer is liable for the acts of others are stated expressly in the legislation. It is not for the courts to extend the ambit of the discrimination legislation, however desirable this may seem, under the guise of interpretation of provisions which are unambiguously clear. As the legislation stands, the employer cannot be in a worse position regarding sexual or racial harassment of an employee by a third party for whose behaviour he is not vicariously liable than he is regarding sexual or racial harassment committed by himself. If his conduct in the latter case must meet the statutory definition of discrimination before it will become unlawful, so also must his conduct, whether by way of act or omission, in the former case.
LORD HOPE OF CRAIGHEAD
38. The question which lies at the heart of these two appeals is whether, and if so in what circumstances, homosexuals who have been discriminated against or harassed can obtain a remedy against their employers under the Sex Discrimination Act 1975. Although there is much common ground between the two cases, they arise out of different facts and circumstances. Your Lordships will wish to be provided with a brief account of each of them before turning to the points of law which they have raised. But it may be helpful if I were to begin by setting out the relevant provisions of the statute.
The 1975 Act
39. Section 1(1)(a) of the Sex Discrimination Act 1975 provides:
Section 2(1) provides that section 1, and the provisions of Part II and III of the Act relating to sex discrimination against women, are to be read as applying equally to the treatment of men, with the requisite modifications.
40. Section 5(3) of the Act provides:
Section 6(2), which is in Part II of the Act, provides that it is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman by dismissing her, or subjecting her to any other detriment.
The facts in Ms Pearce's case
41. The facts of Ms Pearce's case against the Governing Body of Mayfield Secondary School have been described by my noble and learned friend, Lord Rodger of Earlsferry. I gratefully adopt his account. I should like to deal in my speech with the facts in Mr Macdonald's case. As Lord Rodger has explained, Ms Pearce's case raises three principal issues. They relate to the choice of the comparator where the claimant is a homosexual, to the question whether a comparator is needed in a case of sexual harassment and to the test of the employer's liability for sexual harassment. In Mr Macdonald's case there are two principal issues. They are almost identical to the first two issues in Ms Pearce's case - those relating to the choice of the comparator and to the question whether a comparator is needed in a case of sexual harassment.
The facts in Mr Macdonald's case
42. This is an appeal against an interlocutor of an Extra Division of the Court of Session (Lords Prosser, Kirkwood and Caplan) in a case brought by Roderick Macdonald ("Mr Macdonald") under the Sex Discrimination Act 1975 against the Advocate General for Scotland as representing the Secretary of State for Defence. Mr Macdonald served in the Royal Air Force from August 1989 until 28 March 1997 when he was dismissed from the service because he had admitted that he was sexually attracted to men. He claims that in these circumstances he was discriminated against unlawfully by the armed forces on the ground of his sex. His application to the employment tribunal for compensation for unlawful discrimination and sexual harassment was dismissed on 16 December 1999. He appealed to the Employment Appeal Tribunal, which ordered on 19 September 2000 that his appeal be allowed and that a finding that he had been discriminated against unlawfully and was subjected to sexual harassment be substituted:  ICR 1. On 1 June 2002 the Extra Division, by a majority (Lord Prosser dissenting), allowed an appeal by the Advocate General and restored the decision of the employment tribunal: 2002 SC 1;  ICR 174. Mr Macdonald has invited your Lordships to allow his appeal, restore the order of the Employment Appeal Tribunal and remit his case to the employment tribunal to assess the amount to be awarded to him as compensation.
43. Mr Macdonald served in the Royal Air Force from August 1989 until 28 March 1997 when he was dismissed from the service because he had admitted that he was sexually attracted to men. At that time it was the policy of the United Kingdom Government that homosexuality, whether male or female, was inconsistent with service in the armed forces. Paragraph 1032(1) of the Queen's Regulations provided that if individuals admitted to being homosexual while serving and their Commanding Officer judged that the admission was well-founded they would be required to leave the service. Guidance for Commanding Officers on dealing with cases of homosexuality was contained in AP 3392 vol 5, leaflet 107. In paragraph (1) homosexuality was defined as "behaviour characterised by being sexually attracted to members of the same sex."
44. Mr Macdonald had previously obtained a commission in the Intelligence Corps as an officer in the Territorial Army. He enlisted into the Royal Air Force on 19 August 1989. On 17 March 1996 after an unbroken period of exemplary service he was posted to RAF Prestwick as Officer Commanding Administration Flight. One of his responsibilities in that position was that of Custodian of Communications Security. As he was aware when he received his posting, this required a form of security clearance which involved a subject interview by a field investigating officer. He was told that the investigating officer would question him in depth about all aspects of his lifestyle, that many of the questions might seem unduly personal but that it was essential that he answered all the questions truthfully and without prevarication as it would damage his security standing if he was found to have lied or withheld information. He knew that in the course of his interview he would be asked about his sexuality.
45. When Mr Macdonald was interviewed by the field investigating officer on 10 April 1996 and asked whether he was a practising homosexual he answered in the affirmative. The investigating officer said in his recommendation following the interview that, with the exception of the fact that he was a homosexual, Mr Macdonald had given no reason to doubt his suitability to hold the required level of security clearance. The matter then passed into the hands of Wing Commander Leeds, a senior officer in the Vetting Wing which was responsible for security vetting for RAF personnel. He concluded that Mr Macdonald should not be granted security clearance and made a recommendation to that effect. But he also took the view that it was essential for him to interview Mr Macdonald to obtain more details of his sexuality and establish whether any other servicemen had been involved with him. He was authorised by his superior officer to proceed in this way.
46. Mr Macdonald was interviewed by Wing Commander Leeds on 23 May 1996. In the course of this interview many personal and intrusive questions were put to him about his sexuality, his sexual history, his past sexual relationships and his sexual conduct and activities both within and outwith the context of his service career. Much of this questioning was designed to elicit from him the names of other service personnel with whom he had been involved in these activities, but he steadfastly refused to be drawn into the position of implicating anyone. Other questions were designed to identify the precise nature of various homosexual acts in which he had engaged. Following this interview Wing Commander Leeds submitted a report to his senior officers in which he recommended that Mr Macdonald be denied the higher level of security clearance required for his new appointment. He recommended that the basic level of security clearance required of all personnel serving in or working for the RAF should be withdrawn from him also, rendering him unsuitable for service. His recommendation was accepted, and the decision to withdraw Mr Macdonald's security clearance took effect on 28 March 1997. As a result of the disclosure of his sexual orientation his service in the RAF was terminated on that date.
47. In the light of this background Mr Macdonald submitted an application to the employment tribunal in which he claimed that his dismissal was an act of unlawful discrimination against him on the ground of his sex within the meaning of section 1(1) and 2(1) of the Sex Discrimination Act 1975. He also claimed that the circumstances surrounding his dismissal, and in particular the interview to which he was subjected by Wing Commander Leeds on 23 May 1996, constituted unlawful sexual harassment. The employment tribunal held that the Sex Discrimination Act 1975 was concerned only with discrimination on grounds of gender and not with discrimination on grounds of sexual orientation. They also held that the correct comparator for Mr Macdonald's complaint of less favourable treatment on the ground of his sex was a servicewoman who admitted that she was sexually attracted to women. They found that a servicewoman who admitted her sexual attraction to women would also have been dismissed from the service, so Mr Macdonald had not been discriminated against on the ground of his sex. They also dismissed his claim of sexual harassment. They found that Wing Commander Leeds had not been sexually motivated in his conduct of the interview, and that he would have conducted it on much the same basis if he had been faced with a homosexual female officer. The Employment Appeal Tribunal differed from the employment tribunal on all three points. They held that the word "sex" in section 1(1)(a) of the 1975 Act should be interpreted as including sexual orientation as well as gender, that the correct comparator as to whether a male homosexual had received less favourable treatment was a female heterosexual so Mr Macdonald had suffered unlawful discrimination by being forced to resign from the RAF and that he had also suffered sexual harassment at his interview regardless of any comparator because of the sexually-related nature of the questioning.
48. In the Court of Session all three judges in the Extra Division were agreed that the 1975 Act was concerned with gender and not with sexual orientation. Lord Prosser said that, while any general discussion about or study of "sex" would no doubt cover questions of sexual orientation and not be limited to mere questions of gender, he was quite unable to give the word "sex" in section 1(1)(a) of the Act any other meaning than its familiar and ordinary meaning of "gender": 2001 SC 1, 10, paras 26 and 27;  ICR 174, 184. But the court was divided on the question as to the appropriate comparator. Lord Prosser said that if one was faced with a man wanting or having a partner of a given gender a comparison must be made with a woman having or wanting the same - that is, a partner of that same gender. As Mr Macdonald was attracted to males, he should be compared with a woman who was attracted by males: pp 14G, 188 E, para 37. Lord Kirkwood and Lord Caplan took the opposite view. As Lord Caplan put it, the fact that Mr Macdonald may have been inclined to form sexual attachments with members of his own sex in violation of the RAF's policy was the critical circumstance, and inequality of treatment could not be established without reference to the question how a woman would be treated if she too had violated the same policy: pp 21E-G, 196 B-D, para 7.
The overall context
49. It was accepted in Ms Pearce's case that the questions which it raises must be answered having regard to the state of the law at the time of the campaign to which she claims to have been subjected at the school between 1991 and 1995. It is common ground also that the question whether Mr Macdonald was discriminated against unlawfully on the ground of his sex must be addressed by applying the law as it stood on the date of his compulsory dismissal on 28 March 1997. The question which their cases raise is difficult and controversial, but it is right to observe at the outset that the position which confronted homosexuals at the time of these events has now been greatly eased by subsequent developments.
50. On 2 October 1998 the Human Rights Act 1998 came into force. It was expressly acknowledged during the hearing before the Extra Division in Mr Macdonald's case that his rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmnd 8969) taken separately and together with article 14 had been breached: see Lord Prosser, 2001 SC 1, 8, para 17. It follows that he is entitled to a remedy for that breach under article 41 of the Convention. But, for the reasons given by my noble and learned friend, Lord Nicholls of Birkenhead, it is not possible for him to obtain a remedy under the 1998 Act in these proceedings.
51. On 12 January 2000 the United Kingdom Government announced a change in policy. Homosexuality was no longer seen as incompatible with service in the armed forces, and there was no longer a reason to deny the opportunity of a career in the armed forces to a homosexual: Hansard, HC Debates, 12 January 2000, col 288. That change of policy was rendered inevitable by the decisions of the European Court of Human Rights in Smith v United Kingdom (2000) 29 EHRR 493 and Lustig-Prean v United Kingdom (2000) 29 EHRR 548. In these cases the court held that intrusive questioning into the lives of members of the armed forces suspected of being homosexual, and their discharge on the sole ground of their sexual orientation, constituted a violation of their right to respect for their private lives under article 8 of the Convention in combination with article 14. In S L v Austria (Application No 45330/99), 9 January 2003, para 37 and L & V v Austria (Joined Applications Nos 39392/98 and 39829/98) para 37 the European Court again emphasised that sexual orientation is a concept covered by article 14 and that differences based on sexual orientation require particularly serious reasons by way of justification. It was held that a provision in the Austrian Criminal code which penalised homosexual acts of adult men with consenting adolescents violated article 14 taken in conjunction with article 8.
52. 52. There have been significant changes too in the way the issue of homosexuality is being treated in Community law. On 1 May 1999 the European Union was established by the Treaty on European Union (TEU) signed at Maastricht on 7 February 1992. That Treaty has been amended by the Treaty of Amsterdam (1997) and the Treaty of Nice (2000). Article 6(1) TEU, inserted by the Amsterdam Treaty, states that the Union “is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.” Article 6a (now article 13 EC) was inserted into the EC Treaty by the Amsterdam Treaty (Article 2). It gave the EC competence to legislate to combat discrimination based on, among other things, religion or belief, disability, age or sexual orientation. There then followed two important directives. Council Directive 2000/78/EC (“the Framework Directive”) requires legislation in respect of discrimination on grounds of religion or belief, disability, age or sexual orientation to be implemented in national law by 2 December 2003. Council Directive 2002/73/EC (“the amended Equal Treatment Directive”) requires legislation deeming harassment and sexual harassment within the meaning of that directive to be discrimination on the ground of sex and therefore prohibited to be implemented in national law by 5 October 2005. On 23 October 2002 the draft Employment Equality (Sexual Orientation) Regulations were published by the Department for Trade and Industry. This measure is designed to implement the United Kingdom’s obligations under the sexual orientation part of the Framework Directive. Consideration is being given to the legislative changes that will be needed to implement the concepts of harassment related to sex and sexual harassment which are contained in the amended Equal Treatment Directive. Consultation has taken place, with a view to giving companies and public sector organisations time to prepare for their new responsibilities: see the Consultation Papers Towards Equality and Diversity (December 2001), Equality and Diversity: A Way Ahead (October 2002) and Equality and Diversity: Making it Happen (October 2002).
53. As Mr O'Neill QC for Mr Macdonald was right to explain to your Lordships, these developments have in no way reduced the importance of this case to the appellants. They do however make it clear that their cases have been, through no fault of their own, caught up in a time warp whose consequences have only now been completely discredited. It has to be stressed also that we are dealing here with an area of the law which is entirely the creature of statute. The sole purpose of the 1975 Act, as its long title indicates, was to render certain kinds of sex discrimination unlawful. It was not designed to deal with discrimination on other grounds, however reprehensible.
54. We can, of course, have regard to the treaty obligations of the United Kingdom in seeking to resolve an ambiguity in the meaning of the statute: R v Secretary of State for the Home Department, Ex p Brind  1 AC 696, 747G-748E per Lord Bridge of Harwich; T, Petitioner 1997 SLT 724, 733. But the precise way in which the 1975 Act is framed leaves very little room for judicial reform and development of the kind which was possible in the law relating to adoption in T, Petitioner and in the interpretation of the expression "a member of the original tenant's family" in Schedule 1, para 3 of the Rent Act 1977 in Fitzpatrick v Sterling Housing Association Ltd  1 AC 27. Counsel for the appellants accepted that it was not open to them to rely on the provisions of section 3 of the Human Rights Act 1998, as that section does not enable the meaning which was previously given to primary legislation to be changed retrospectively: R v Lambert  2 AC 545; 604 para 142 per Lord Clyde; R v Kansal (No 2)  2 AC 69, para 83. Although directives have now been promulgated, following the insertion by the Treaty of Amsterdam of what is now article 13 EC into the EC Treaty, to deal with discrimination on the ground of sexual orientation (Council Directive 2000/78/EC) and with sexual harassment (Council Directive 2002/73/EC), they will not have direct effect under article 249 EC until the end of the period fixed for their implementation: Pubblico Ministero v Ratti (Case 148/78)  ECR 1629, para 24; Richard Brent, Directives: Rights and Remedies in English and Community Law (2001), 15.02.
55. If there were indications a different approach had already been taken in Community law, we would be bound to follow it. This is because the Sex Discrimination 1975 gave effect in domestic law to Council Directive 76/207/EEC ("the Equal Treatment Directive"). Article 3(1) of that Directive states that application of the principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex as regards access to employment and working conditions. In Webb v EMO Air Cargo (UK) Ltd  ECR I-03567, para 26, dealing with the position of pregnant women, the European Court of Justice rejected an interpretation of the Directive that would have rendered its provisions ineffective. And the court has repeatedly held that the right not to be discriminated against on grounds of sex is one of the fundamental human rights whose observance it has a duty to ensure: see P v S and Cornwall County Council  ECR I-2143, para 17. In that case the court held that the scope of the Directive applied also to discrimination arsing from gender reassignment. The question is whether the Directive has been held to apply also to discrimination arising from sexual orientation.
56. In Grant v South-West Trains Ltd  IRLR 206, the European Court held that the refusal of travel concessions to a male worker living with a person of the same sex, just as they were to a female worker living with a person of the same sex, could not be regarded as constituting discrimination directly based on sex contrary to the Equal Pay Directive: paras 27, 28. It rejected the submission, noted in para 37, that differences of treatment based on sexual orientation were included in the 'discrimination based on sex' prohibited by article 119 of the EC Treaty (now article 147 EC). In para 47 the court said:
57. It is plain from this passage that the court does not see the word "sex" in that article as extending to sexual orientation: see also D v Kingdom of Sweden  ECR I-04319, paras 45-47. So there is no basis in Community law for extending the meaning of any of the provisions of the 1975 Act to cover discrimination on this ground. In R v Ministry of Defence, Ex p Smith  QB 517, 560-561 Sir Thomas Bingham MR said that he had found nothing whatever in the EEC Treaty or in the Equal Treatment Directive which suggested that the draftsmen of these instruments were addressing their minds in any way to problems of discrimination on the grounds of sexual orientation. It was no doubt for this reason that the Commission thought that it was necessary, following the amendment of Treaty in Amsterdam, to deal with this matter by means of Council Directives 2000/78/EC and 2002/73/EC.
58. So we must take the 1975 Act as we find it. As Mr Sales said at the outset of his submissions in Ms Pearce's case, it is an unfortunate fact that human beings discriminate each other all the time. But this is unlawful only when the law proscribes such conduct. All we can do is apply to the facts the ordinary and natural meaning of the words which Parliament used when it was describing the circumstances in which the statutory remedy was to be available. There is no escape from the conclusion that the lack of insight into homosexuality which was current when the statutory framework within which the appellants' cases lie was being laid down casts a shadow over these proceedings which is not capable of being lifted by the more recent developments.
The issues in Mr Macdonald's case
59. Mr O'Neill made it clear in the course of his submissions in Mr Macdonald's case that the meaning of the word "sex" in section 1(1)(a) of the 1975 Act was no longer in dispute. He accepted that it means simply "gender". I think that he was right to make this concession, especially in the light of the position which has been adopted by the European Court. In my opinion it is clear that this is the ordinary meaning of the word in this context. As Simon Brown LJ said in R v Ministry of Defence, Ex p Smith  QB 517, 543, the ordinary and natural meaning of the word "sex" in this context is gender. In Smith v Gardner Merchant Ltd  ICR 134 it was conceded that this was so. Judge LJ was plainly right when he said in Ms Pearce's case that the 1975 Act does not address "sexual orientation" and that words which might possibly have that meaning, or which might be regarded as illustrative of or broad enough to encompass this concept, are absent from it:  ICR 198. The express purpose of the Act is to eliminate "certain kinds" of sex discrimination. As a discrete ground "sexual orientation" is not included.
60. But Mr O'Neill submitted that the treatment which Mr Macdonald suffered can nevertheless be analysed as discrimination on the ground of his sex. As he put it, the question is whether there is an overlap between the concepts of gender and sexual orientation, given that they are different. Having maintained that there was such an overlap, he said that the critical issues in his case were directed to the phrase "the relevant circumstances" in section 5(3) and to the selection of the characteristics of the appropriate comparator. The proposition for which he contended was that in order to compare like with like, where the man was attracted to another man, the woman who was selected as the comparator had to be a woman who was attracted to a man also. As for the complaint of sexual harassment arising from the intrusive interview, he said that this was so blatantly male-orientated that there was no need to resort to a comparison. It was plain that this was an act of unlawful discrimination on the ground of Macdonald's sex.
The scope of the Act
61. The fact that it is now agreed that the word "sex" in section 1(1)(a) has no meaning in this context other than gender has important consequences. It has a direct bearing on the choice of the comparator. If the word was to be taken to include sexual orientation as well as gender, it would have been enough for Mr Macdonald to show that the treatment which he received from the RAF on the ground of his homosexuality was less favourable than the way a heterosexual man would have been treated by the armed services. On the given facts his case would then have been unanswerable. The only characteristic that would have had to be changed in order to identify the appropriate comparator would have been the characteristic which made it unlawful for his employer to discriminate against him. There would have been no need to change the gender of the comparator, as gender was not the critical issue in his case. The only change needed would have been as to the sexual orientation of the comparator. The comparison of his case with a heterosexual man would have led directly to the conclusion that implementation of the armed forces' policy against homosexuals because of their sexual orientation had discriminated against him in a way that was unlawful.