Macdonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) (Scotland), Pearce (Appellant) v. Governing Body of Mayfield School (Respondents)
195. For these reasons I reject Mr Emmerson's argument that the tribunal did not require to compare how the pupils treated Ms Pearce with the way that they would have treated a male homosexual teacher in the same circumstances. Such a comparison must be made in all cases under section 1(1)(a) of the 1975 Act.
196. Once that argument is rejected and it is recognised that the tribunal required to make a comparison, Ms Pearce's second ground of appeal must fail. As Ms Booth submitted, the issue under section 1(1)(a) cannot turn on a minute examination of the precise terms of the abuse with which the pupils assailed Ms Pearce. Obviously, the verbal abuse that the pupils would have directed at a male teacher would have been different, selected as apt for a male rather than a female homosexual. It is unnecessary to specify the kinds of words that would have been used which are, in any event, all too obvious. Quite simply, there is no basis upon which the House could reject the tribunal's conclusion that the pupils' treatment of a male teacher, whatever its precise form, would have been no more favourable than their treatment of Ms Pearce. Her second ground of appeal must accordingly be rejected.
Disposal of Mr Macdonald's second ground of appeal
197. Mr Macdonald complains of sexual harassment in the intrusive interview which Wing Commander Leeds conducted into his sexual relations with other men. The employment tribunal found, however, that the Wing Commander would have conducted an interview on much the same basis if the officer concerned had been female. That is a conclusion which the House cannot challenge and it is fatal to Mr Macdonald's claim under this heading. His second ground of appeal must accordingly be rejected also.
Disposal of the Appeals
198. Since both Mr Macdonald's grounds of appeal have been rejected, his appeal must be dismissed.
199. The rejection of Ms Pearce's first two grounds of appeal means that she has failed to show that the pupils discriminated against her on the ground of her sex. Since the respondent could not be liable unless the pupils had been guilty of sex discrimination, it follows that her appeal must also be dismissed. It is therefore unnecessary to deal with the third ground of appeal. Since the point was argued, however, I can indicate my views shortly.The third issue: Ms Pearce's third ground of appeal
200. The employment tribunal indicated that, if they had found that the pupils had discriminated against Ms Pearce on the ground of her sex, they would have held the school liable for subjecting her to that discrimination. The reasoning of the tribunal was criticised by the EAT and by the majority of the Court of Appeal (Judge and Henry LJJ). Having studied the criticisms, especially those in the judgment of Judge LJ,  ICR 198, 214 - 218, paras 44 -62, I find them compelling. Had it been necessary to do so, I should accordingly have dismissed Ms Pearce's appeal on this ground also.
201. Although neither side raised the point, during the hearing my noble and learned friend Lord Scott of Foscote drew attention to the defective reasoning of the EAT in Burton v De Vere Hotels  ICR 596 on which Ms Pearce's case against the school rests. From what we were told, that decision has been followed in practice and has not hitherto been doubted. The following points are worth noting, however.
202. The essence of the decision was that an employer could be liable under sections 1(1)(a) and 4(2)(c) of the Racial Discrimination Act 1976 if, having control over his employees, he subjected them to a detriment in the form of racial harassment by a third party. This, the crucial step in the EAT's decision, proceeded on the basis of a concession by the respondents' counsel:  ICR 1, 6, para 16.
203. Next, the racial discrimination to which the two complainants had been subjected was characterised as racial harassment in the form of racial abuse. Counsel for both parties agreed, by reference to Strathclyde Regional Council v Porcelli, that there was no need to show that a white person would have been treated differently:  ICR 1, 6, paras 18 and 19. For the reasons given above, I should prefer to say that, where a person is subjected to race-specific abuse by someone who is racially motivated, it may well be obvious that the victim was treated less favourably than a white person would have been treated. The comparison requires to be made but res ipsa loquitur: Smith v Gardner Merchant Ltd  ICR 134, 148 per Ward LJ.
204. Thirdly, counsel for the respondents' concession in Burton, that a person might discriminate against another in terms of section 1(1)(a) when, as a result of his active or passive treatment of the other, the other suffers racial abuse or harassment, is far-reaching. It means that, despite the unambiguous terms of section 1(1)(a), an employer is held to have discriminated against an employee, for the purposes of section 4(2)(b) of the Race Relations Act, even though he himself has not treated the employee less favourably than some other person on racial grounds. I am unable to accept that construction of section 1(1)(a), particularly when Parliament thought it necessary to enact specific provisions, sections 31 and 33, to deal with persons who induce or attempt to induce, or knowingly aid and abet, another to discriminate on racial grounds. Similar provisions are to be found in sections 40 and 42 of the 1975 Act.