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England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Smith v Gardner Merchant Ltd [1998] EWCA Civ 1207 (14 July 1998)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/1207.html
Cite as: [1999] ICR 134, [1998] EWCA Civ 1207, [1998] 3 All ER 852, [1998] IRLR 510

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IN THE SUPREME COURT OF JUDICATURE EATRF 97/0256/3
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice
Strand
London WC2

Tuesday, 14 July 1998
B e f o r e:

LORD JUSTICE BELDAM
LORD JUSTICE WARD
SIR CHRISTOPHER SLADE

- - - - - -

PAUL SMITH
APPELLANT
- v -

GARDNER MERCHANT
RESPONDENT
- - - - - -
(Transcript of the handed down judgment of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
- - - - - -

MS L COX QC with MR T KIBLING (Instructed by Messrs Judge Priestley, Kent BR1 1JN) appeared on behalf of the Appellant

MR A KORN (Instructed by Messrs Dibb Lupton Alsop, London EC2Y 5AE) appeared on behalf of the Respondent
- - - - - -

J U D G M E N T
(As approved by the Court )

- - - - - -
©Crown Copyright
Tuesday, 14 July 1998

J U D G M E N T
LORD JUSTICE WARD:

The Burning Question .

This appeal raises important issues. Whereas a male homosexual is in no worse (and no better) position than a male heterosexual in bringing a complaint under section 1 of the Sex Discrimination Act 1975 in cases where less favourable treatment on the ground of his sex has nothing to do with his sexual orientation, what is the position when his orientation is material? In such a case is it necessary to find any comparator for the purpose of the comparative exercise envisaged under sections 1 and 5(3) of the Act, and if it is, is comparison to be made with a homosexual or a heterosexual woman?

The Facts alleged by the Appellant.

Paul Smith is the appellant. He is homosexual. In about the autumn of 1992 he was employed by the respondent as a barman. At first he worked at the Coliseum and there appears to have been no complaint about his conduct or the performance of his duties at that location. Following a reorganisation in about December 1993 he was moved to the Globe Theatre. There he came into contact with a fellow employee, Ms Barbara Touhy. There was trouble between them. He complained as follows:-

"3. On 4th April 1994, I was suspended and on 11th April 1994 I was dismissed following allegations by another employee, Barbara Touhy. Ms Touhy alleged that I had been abusive and threatening towards her, that I flirted with male customers and that I insisted on talking in detail about my love life. None of this was true although I accept I did not get on with Ms Touhy and we did argue because of her attitude towards me as a gay man and because of her use of drugs at work which made her incapable of doing her duties.
4. I had worked with Ms Touhy for approximately 9 days after her transfer from another bar. From the outset Ms Touhy constantly asked personal questions regarding my sexuality and made offensive remarks about my being gay. For example, she said I probably had all sorts of diseases and that gay people who spread Aids should be put on an island.
5. Indeed, Ms Touhy’s behaviour towards me was very odd, perhaps based on the fact she was taking drugs. On one occasion at the end of the night shift she punched me in the back. I immediately reported this to the supervisor, who came to see Ms Touhy and asked if she had punched me, which she denied. ”

On 4th April 1994 Ms Touhy complained about his conduct, a complaint which was taken so seriously by his employers that he was suspended from work and asked to attend a meeting the following day. It was alleged that he had behaved in a threatening and aggressive manner which he denied. He was asked to attend a further meeting a few days later. During the interval the company interviewed various members of staff. The allegations were again put to Mr Smith at that second meeting. The general manager then considered all the facts placed before him and on 11th April 1994 dismissed Mr Smith on the grounds of his threatening and aggressive behaviour which was considered by the company to constitute gross misconduct. The appellant complained that:-

"I was further discriminated against on the grounds of my sex in that my employers chose to believe Ms Touhy rather than myself...”

The Complaint To The Industrial Tribunal.
Because the appellant had not been employed for two years, he was unable to bring any claim for unfair dismissal. Instead he brought his complaint under the Sex Discrimination Act 1975 stating his case to be:-

"I believe I have been subjected to unlawful sex discrimination contrary to the SDA in
a. Ms Touhy’s allegations, which would not have been made against a gay woman

b. The conduct of my employers of the disciplinary process and the decision to dismiss me rather than Ms Touhy."

At the hearing of the complaint before the Industrial Tribunal, counsel on behalf of Mr Smith expanded his claim by adding a complaint of sexual harassment.

The Tribunals’ Decisions.
At the hearing before the Industrial Tribunal, the tribunal, apparently at its own initiative, took the view that it preferred to hear legal argument on a preliminary issue. Seen with hindsight, that was an unfortunate decision. This case is a paradigm example of an attempt to shorten proceedings which results in their being prolonged and ultimately inconclusive in nine cases out of ten. I would discourage Industrial Tribunals from trying to identify preliminary points of law in cases in which the facts are in dispute and when it is far from clear what facts will ultimately be found by the Tribunal and what facts should be assumed to be necessary to form the basis of the proposed point of law.

The Industrial Tribunal identified the preliminary issue as one:

"concerning the claim by the applicant Mr Paul Smith that he has been discriminated against as a result of his dismissal from employment by the respondents, on the grounds of his sexual orientation, namely that he is a homosexual....The tribunal preferred to hear legal argument...on the preliminary issue as to whether we could entertain such a claim rather than take the evidence of the witnesses for the respondents and the evidence of the applicant on the factual elements. For the purposes of the argument, we have accepted the hypothesis that Mr Smith was sexually harassed by reason of his sexual orientation in employment and that he suffered less favourable treatment by reason of his sexual orientation when he was dismissed from that employment.”

They came to this decision:-

"It is the unanimous decision of the tribunal that the applicant’s claim of discrimination on grounds of his sexual orientation is not within the jurisdiction of the tribunal under the provisions of the Sex Discrimination Act 1975 and accordingly this claim is dismissed."

The appellant appealed to the Employment Appeal Tribunal. Their decision handed down on 13th February 1996 was that that the Industrial Tribunal had reached a correct decision. The appellant appeals to us with leave of the full court.

The Statutory Framework.
The following provisions of the Sex Discrimination Act 1975 are material (and I read sections 1 & 2 together.)
"1(1) A person discriminates against (a man) in any circumstances relevant for the purposes of any provision of this Act if -

(a) On the ground of (his) sex he treats (him) less favourably than he treats or would treat a (woman)...

5(3) A comparison of the cases of persons of different sex...under Section 1(1)...must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

6(2) It is unlawful for a person, in the case of a (man) employed by him at an establishment in Great Britain, to discriminate against (him) -

(a)...

(b) by dismissing (him), or subjecting (him) to any other detriment."

The 11th Schedule to the Employment Protection (Consolidation) Act 1978 contained in paragraph 18 A(7) a definition of “sexual misconduct” in the context of the making of a restrictive reporting order where it means:-
"The commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed."

The Equal Treatment Directive 76/207/EOC provides:-
"Article 2(1)
For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on the grounds of sex either directly or indirectly by reference in particular to marital or family status.

Article 5(1).
Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.".

The European Commission’s Recommendation on the Protection of the Dignity of Woman and Men at Work (OJ(L) 49/92) includes the implementation of a Code of Practice in which it is stated:-
"It is undeniable that harassment on grounds of sexual orientation undermines the dignity at work of those affected and it is impossible to regard such harassment as appropriate work place behaviour."

The Extended Reasons Given By The Industrial Tribunal.
Counsel for the appellant submitted to the tribunal that the reference in the Equal Treatment Directive to “family status” was apt to describe sexual orientation. She submitted that if a lesbian would not have suffered as the applicant had, then there would be unfair discrimination. She argued that in fact the true person with whom comparison has to be made (“the comparator”) is a heterosexual woman. She also submitted that a homosexual male is in as unique a male gender category as a pregnant woman is unique in her condition.

Counsel for the respondent argued that the Act did not cover discrimination on the ground of sexual orientation: if Parliament had wished to include that it could easily have done so as it did when defining sexual misconduct in the 11th Schedule to the 1978 Act. The case was not brought within the Directive under “family status.” His submission was clear and simple: if, as had to be assumed for the purposes of the preliminary issue, the applicant had been unfairly treated, he was unfairly treated because of his sexual orientation not because of his sex.

The tribunal disposed of the argument that a male homosexual is in a unique position, saying:-
"We cannot see that there is a conceptual difference between a homosexual man and a homosexual woman, albeit that there is a word in the language to describe the latter (“lesbian”) but no equivalent of the male version, at least not in a respectable dictionary. We observed that even the vernacular word “gay” is applied equally to men and women of homosexual orientation."

They then dealt with the main arguments submitted to them saying:-
"The main burden of Mr Korn’s argument is that if Parliament had intended the SDA to cover sexual orientation, it would have said so. It does not. But if the SDA does prohibit discriminatory treatment of a male homosexual, it only does so where a man is treated less favourably than a female lesbian, and it would be wholly erroneous to compare a homosexual male with a heterosexual female. It is not comparing like with like when the cause of differential treatment is sexual preference/orientation rather than sex/gender. On that argument the provisions of Section 5(3) SDA, quoted above, require a comparison between the treatment of a male homosexual with a female homosexual (lesbian)...We conclude that the SDA does carry into force the intent of the Directive and comparing Article 2.1 of the Directive with Section 1 SDA we are satisfied that Parliament has carried out its obligations in that regard. The 11th Schedule of the Employment Protection (Consolidation) Act 1978 makes it clear that Parliament is aware of the distinction between sex/gender and sexual orientation/ preference and ... if legislation is to be introduced to protect “gays” against discrimination, it is for Parliament to do so. It is obviously a politically sensitive area and one which should be left to Parliament and not the courts or tribunals to determine."

The judgment of the Employment Appeal Tribunal was given by Tucker J. The Employment Appeal Tribunal held that:-
"Thus it will be seen that in both United Kingdom and European law the words used are “on the ground(s) of (his/her) sex.” There is no mention in either provision of sexual orientation or preference. Miss Cunningham (counsel for the appellant) frankly concedes that discrimination on the grounds of homosexuality was not in the minds of the draftsman or the legislators.
...
Miss Cunningham submitted that a homosexual man is in a gender-specific category, and the accident of nomenclature that homosexual is used to denote two distinct sexual preferences does not affect their conclusions. We do not agree. Homosexuality is a form of sexual preference which can apply to either sex. The analogy with pregnancy is mistaken - pregnancy is a unique female condition. Discrimination on the grounds of pregnancy is discrimination on the ground of sex. See Webb -v- Emo Air Cargo U.K. Ltd [1994] ICR 770 and [1995] ICR 1021. Whereas discrimination on the grounds of homosexuality in either sex is discrimination on the grounds of sexual orientation.

This being our conclusion, we do not have to examine the question whether a comparator must be found, let alone whether such a comparator would be a heterosexual or a homosexual woman.

Miss Cunningham argued that the appellant was taunted for being a “gay” man, and that this amounted to sexual harassment constituting sexual discrimination. She referred to the Scottish case of Porcelli -v- Strathclyde Regional Council [1986] ICR 564. But there are clear distinctions between that case and the present. The Lord President said at p. 569E that in his opinion a particular point of the campaign adopted against Jean Porcelli was because she was a woman. The campaign alleged to have been adopted against the appellant was not because he was a man, but because he was a homosexual....In our opinion the Industrial Tribunal reached a correct decision."


The Grounds Of Appeal To This Court.
The appellant was seeking to argue five points, namely:
1. That Article 2 of the Directive did prohibit discrimination on the grounds of sexual orientation.
2. Accordingly the 1975 Act had to be construed so far as possible to conform with the Directive.
3. The Employment Appeal Tribunal should therefore have held that in Section 1(1) of the Act the word “sex” is not limited in meaning to gender but extends to sexual orientation.
4. For the purposes of the application of Section 5(3) of the Act the relevant circumstances should be construed as excluding sexual matters in respect of which the discrimination occurred.
5. In the alternative the tribunal should have held that the relevant comparator to the appellant is a heterosexual woman.

Shortly before this appeal was heard the European Court of Justice handed down its judgment in Lisa Grant -v- South-West Trains Ltd [Case C-249/96]. Ms Grant was employed by SWT whose employees were entitled to travel concessions. “Privilege tickets” were granted for one legal spouse of an employee and also to “one common law opposite sex spouse ... subject to a statutory declaration being made that a meaningful relationship has existed for a period of two years or more...”That travel concession was an aspect of pay within the meaning of Article 119 of the Treaty.

The first question for the European Court to answer was whether that provision conferring the benefit on an employee who lived with a person of the opposite sex constituted discrimination based directly on the sex of the worker. The court held:-
"That condition, the effect of which is that the worker must live in a stable relationship with a person of the opposite sex in order to benefit from the travel concessions, is, like the other alternative conditions prescribed in the undertaking’s regulations applied regardless of the sex of the worker concerned. Thus travel concessions are refused to a male worker if he is living with a person of the same sex, just as they are to a female worker if she is living with a person of the same sex.

Since the condition imposed by the undertaking’s regulations applies in the same way to female and male workers, it cannot be regarded as constituting discrimination directly based on sex."

The second question was whether or not persons in a stable relationship with a partner of the same sex are in the same position as those in a relationship with a partner of the opposite sex. The court held that in the present state of the law within the Community. stable relationships between two persons of the same sex are not regarded as equivalent to marriages or stable relationships outside marriage between persons of opposite sex.

The final question was whether differences of treatment based on sexual orientation were included in the “discrimination based on sex” prohibited by Article 119 of the Treaty or the Equal Treatment Directive. The court had found in P -v- S & Cornwall County Council [1996] ECR 1-2143 that the provisions of the Directive prohibiting discrimination between men and women were simply the expression of the principle of equality which argued in favour of applying it to discrimination based on the worker’s gender reassignment. That reasoning was limited to the case of a transsexual and did not apply to differences of treatment based on a person’s sexual orientation. The court held:-
"...the scope of that article (Article 119) ...is to be determined only by having regard to its wording and purpose, its place in the scheme of the Treaty and its legal context. It follows from the considerations set out above that Community Law as it stands at present does not cover discrimination based on sexual orientation..."

In the light of that judgment, Ms Laura Cox Q.C. abandoned the first three grounds of her notice of appeal leaving the only issues as whether or not the court had to find a comparator and if so who that comparator was.

The Proper Approach.
The proper approaches to the difficult questions raised in this case in relation to the application of Sections 1(1) (a) and 5(3) of the Act can be derived from the following cases.
1. James -v- Eastleigh Borough Council [1990] ICR 554 is a leading authority. There the retired 61 year old husband and wife were treated differently by the leisure centre run by the Council whose policy it was to admit old age pensioners free of charge. Pensionable age is fixed at 60 for women and 65 for men by Section 27(1) of the Social Security Act 1975. Was this direct sex discrimination contrary to Section 1(1) (a) of the Act?
Lord Bridge of Harwich said at p. 568H:-
"Because pensionable age is itself discriminatory it cannot be treated as a relevant circumstance in making a comparison for the purpose of Section 1...It is only by wrongly treating pensionable age as a relevant circumstance under Section 5(3) that is possible to arrive at the conclusion that the provision of facilities on favourable terms to persons of pensionable age does not involve direct discrimination under Section 1(1) (a) but may involve indirect discrimination under Section 1(1) (b). On a proper application of Section 5(3) the relevant circumstances which was the same here for the purpose of comparing the treatment of the plaintiff and his wife was that they were both aged 61."

Lord Goff of Chieveley said p. 573H:-
"We are concerned in the present case with the application of a requirement or condition - pensionable age - which itself gender-based, since a person’s pensionable age differs, depending upon his or her sex."

At p. 574 D-G he said:-
"The problem in the present case can be reduced to the simple question - did the defendant Council, on the ground of sex, treat the plaintiff less favourably than it treated or would treat a woman? As a matter of impression, it seems to me that, without doing any violence to the words used in the subsection, it can properly be said that, by applying to the plaintiff a gender-based criterion, unfavourable to men, which it had adopted as the basis for a concession of free entry to its swimming pool, it did on the ground of sex treat him less favourably than it treated women of the same age, and in particular Mrs James. In other words, I do not read the words “on the grounds of sex” as necessarily referring only to the reason why the defendant acted as he did, but as embracing cases in which a gender-based criterion is the basis upon which the complainant has been selected for the relevant treatment."

At p. 576 C - F he said:-
"Whether or not the treatment is less favourable in the relevant sense, i.e. on the ground of sex, may derive either from the application of a gender-based criterion to the complainant, or from selection by the defendant of the complainant because of his or her sex; but, in either event, it is not saved from constituting unlawful discrimination by the fact that the defendant acted from a benign motive. However, in the majority of cases, I doubt if it is necessary to focus upon the intention or motive of the defendant in this way. This is because, as I see it, cases of direct discrimination under Section 1(1)(a) can be considered by asking the simple question: would the complainant have received the same treatment from the defendant but for his or her sex? This simple test possesses the double virtue that, on the one hand, it embraces both the case where the treatment derives from the application of a gender-based criterion, and the case where it derives from the selection of the complainant because of his or her sex: and on the other hand it avoids, in most cases at least, complicated questions relating to concepts such as intention, motive, reason or purpose, and the danger of confusion arising from the misuses of those elusive terms."

On the often troublesome problem of finding the necessary causal connection which is implicit in the words “on ground of sex”, I gratefully adopt Mummery J.’s summary in O’Neill -v- St Thomas More School [1997] ICR 33, 43F - H:-
"The relevant principles are these:
(i) The Tribunal’s approach to the question of causation should be “simple, pragmatic and commonsensical.”

(ii) The question of causation has to be answered in the context of a decision to attribute liability for the acts complained of. It is not simply a matter of a factual, scientific or historical explanation of a sequence of events, let alone a matter for philosophical speculation. The basic question is: what, out of the whole complex of facts before the Tribunal, is the “effective and predominant cause” or the “real or efficient cause” of the act complained of? As a matter of common sense not all the factors present in a situation are equally entitled to be treated as a cause of the crucial event for the purpose of attributing legal liability for consequences.

(iii) The approach to causation is further qualified by the principle that the event or factor alleged to be causative of the matter complained of need not be the only or even the main cause of the result complained of, though it must provide more than just the occasion for the result complained of. “It is sufficient if it is an effective cause:"

2. To identify whether or not there has been direct sex discrimination it is necessary to compare the treatment meted out to the employee and the treatment which was or would have been meted out to a member of the opposite sex and to ask whether the employee has received less favourable treatment. There are three points to notice:-
(1) In conducting that comparative exercise one applies Section 5(3) which:-
"...is directed to ensuring that like is compared with like. The relevant circumstances in the one case are to be the same as, or not materially different from, those in the other. Of course there is the fundamental difference that the one case concerns a man and the other case concerns a woman....(The “ relevant circumstances”) cannot include the motive of the defendants... because motive is not a valid justification for discrimination. Indeed any other conclusion would be wholly inconsistent with the ruling of the House of Lords in James -v- Eastleigh Borough Council :"

per Dillon L.J. in Bain -v- Bowles [1991] IRLR 356, 358.
(2) As the language of Section 1(1)(a) makes clear, the comparison can be made with the way the employer has in fact treated a woman or the way in which the employer would hypothetically treat a woman. As was accepted in Skyrail Oceanic Ltd -v- Coleman [1981] I.C.R. 864, the Act incorporates the notion of an actual as well as a notional comparator.
(3) In the case of a pregnant woman there can be no comparable hypothetical male because pregnancy is a unique female condition which can not be present in a male: Webb -v- Emo Air Cargo (U.K.) Ltd (No 2) [1995] ICR 1021.
3. Sexual harassment can be a form of sex discrimination. To subject a person to sexual harassment is to subject them to:
"a particularly degrading and unacceptable form of treatment which it must have been the intention of Parliament to restrain:"

per the Lord President in Porcelli -v-Strathclyde Regional Council [1986] I.C.R. 564, 569H. In a passage to which I must later refer again, Morison J. said in British Telecommunications PLC -v- Williams [1997] IRLR 668, 669.8:-

"Discrimination on the grounds of sex can take many forms. Sexual harassment is a particular form. Sexual harassment can best be defined as unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work. To affect a person’s dignity on the grounds of sex will, as with other forms of sexual harassment, cause a detriment to that person. Thus, proof of sexual harassment, of whatever form, will satisfy the criterion. ... see Porcelli -v- Strathclyde Regional Council [1986] IRLR 134."

Sexual harassment constitutes ‘detriment’ because, as Lord Emslie explained in Porcelli, relying on Brandon L.J. in Ministry of Defence v. Jeremiah [1980] I.C.R. 13, 26, ‘detriment’ simply means ‘disadvantage’ in its statutory context. In Wileman v. Minilic Engineering Ltd. [1988] I.C.R. 144 the Employment Appeal Tribunal correctly pointed out that although the words ‘sexual harassment’ do not appear in the Act, they are “legal shorthand for activity which is easily recognised as ‘subjecting her to any other detriment.’”
To found a claim based on Section 6(2)(b), it is, however, not enough only to show that there was some detriment: the applicant must go further and establish that the discrimination predicated by section 6(2)(b) was discrimination within the meaning of Section 1(1)(a). It was on this premise that the Court of Session proceeded in Porcelli and on this basis that they took issue with the Employment Appeal Tribunal which had seemed simply to have asked itself, “Has there been sexual harassment?” As the Lord President stated in Porcelli at pp. 568E-F and G-569A
"Although it is necessary for a woman seeking to found a claim upon section 6(1)(b) of the Act to establish that her employer had discriminated against her by dismissing her or subjecting her to some other detriment it is accepted by the employers for the purposes of the appeal, that if the applicant ... was discriminated against within the meaning of section 1(1)(a) , she was subjected to a detriment within the meaning of section 6(2)(b). ... In the result, accordingly, the critical issues in the appeal required attention to be concentrated upon the decision of the industrial tribunal in so far as it bore to deal with the matter of discrimination within the meaning of section 1(1)(a). ...as it applies to the facts of this case, section 1(1)(a) gives rise to two questions: (first) was the applicant subjected by (her fellow employees) to treatment on the grounds of her sex (i.e. because she was a woman) and (second) if so, was she treated less favourably than the man with whom she falls to be compared would have been treated by these (fellow employees.)"

I have added the emphasis to show the dependence of section 6(2)(b) on section 1(1)(a).
4. In R -v- Ministry of Defence, Ex p. Smith [1996] ICR 740, Simon Brown L.J., at p. 766A in the Divisional Court, said of the “plain and unambiguous language” of Directive 72/207/E.E.C. that it was:-
"an instrument which says everything about gender discrimination, but to my mind nothing about orientation discrimination."

He added at P.766H:-
"I have no doubt that the ordinary and natural meaning of “sex” in this context is gender. Of course the word is apt to encompass human characteristics as well as people’s anatomical qualities; as Ms Cox points out, discrimination is very often based on stereotypical assumptions as to gender characteristics. Orientation, however, is quite another thing. If, of course, an employer were willing to employ lesbians but not male homosexuals, that would be discrimination on grounds of sex. Where, however, as here, an employer refuses to accept homosexuals of either sex, that is discrimination on grounds of orientation."

In the Court of Appeal Sir Thomas Bingham M. R. at p. 784 noted the submission of Ms Cox that if both a man and a woman had sexual relations with the same woman, the principle of equal treatment was breached if the woman but not the man were subject to dismissal. He did not indicate whether he accepted that proposition because he found:-
"...nothing whatever in the E.E.C. Treaty or in the Equal Treatment Directive which suggests that the draftsmen of those instruments were addressing their minds in any way whatever to problems of discrimination on grounds of sexual orientation. Had it been intended to regulate discrimination on that ground it could easily have been done, but to my mind it plainly was not."

As I have already set out, the European Court came to similar conclusions in Grant -v- South-West Trains Ltd.

Ms Cox has rightly conceded that she can no longer argue that sexual orientation is included in sex.

CONCLUSIONS
1. The Industrial Tribunal and the Appeal Tribunal were, therefore, correct to conclude that there is a difference between discrimination on the ground of sex and discrimination on the ground of sexual orientation and that a person’s sexual orientation is not an aspect of his or her sex.
2. The reasoning that followed was along these lines, largely, I suspect, dictated by the way the preliminary issue suggested itself to the Industrial Tribunal and was framed by them:-
(a) The applicant’s case was that he was discriminated against because he was gay;
(b) The Industrial Tribunal assumed he was harassed and suffered less favourable treatment by reason of his sexual orientation;
(c) The Employment Appeal Tribunal indeed found that “the campaign alleged to have been adopted against the appellant was not because he was a man, but because he was a homosexual;”
(d) Because discrimination on the ground of homosexuality is discrimination on the ground of sexual orientation and thus not discrimination on the ground of sex it followed that:-
(i) “The applicant’s claim of discrimination on the grounds of his sexual orientation is not within the jurisdiction of the Tribunal” - per the Industrial Tribunal; and
(ii) “We do not have to examine the question whether a comparator must be found, let alone whether such a comparator would be a heterosexual or a homosexual woman” - per the Employment Appeal Tribunal.
It needed all the persistence and eloquence Ms Cox could muster before I began to see even a possibility that that logic could be faulted, but she has persuaded me.
3. The error lies in the conclusion, which was virtually a conclusion of cadit quaestio , when, as I now see it, the right question had not been addressed. The right question framed in terms of Section 1(1)(a) is whether the applicant, a man , had been less favourably treated than his employers treated or would have treated a woman . By focusing on the applicant’s homosexuality, the drift of the argument pushes one almost ineluctably - as I myself was carried along - to ask the wrong question: was he discriminated against because he was a man (sex) or because he was a homosexual (sexual orientation)? In concentrating on that, one falls into the error that one does not make the comparison which the statute requires namely between his position as a man , and the comparative position of a woman . The fault in the argument is that it precludes consideration of a vital question, namely whether or not discrimination against him based upon his homosexuality may not also be discrimination against him as a man. I am grateful to Ms Cox for withstanding a fairly hostile judicial barrage and for opening my eyes to errors made by the Tribunal.
It is upon that further reflection that I have come to the conclusion that the task imposed on the Tribunal by section 1(1)(a) read with section 5(3) is to ascertain: (a) what, as a matter of fact, was the treatment received by the employee; (b) was he treated less favourably than the woman with whom he falls to be compared; and (c)would he have been so treated but for his sex?
4. Because a comparison has to be made, it is, therefore, necessary to undertake the examination which the Employment Appeal Tribunal forsook, and to decide who the appropriate comparator is.
5. The no comparator argument: This is built upon the unique position of the pregnant woman for whom no comparable male can ever be found. It was submitted that a homosexual male is in a similarly unique category. Neither the Industrial Tribunal nor the Employment Appeal Tribunal had difficulty in rejecting that submission. Nor do I. Homosexuality is the feeling of sexual attraction to persons of the same sex. As such it affects both sexes. A separate word, “lesbian”, for a homosexual woman does not set the homosexual male apart and put him in similar position to the pregnant woman for whom no comparator can be found.

A different argument for avoiding the necessity to look for a comparator of the opposite sex may arise in connection with allegations of sexual harassment. The argument is taken from the judgment of Morison J. in the Employment Appeal Tribunal in British Telecommunications PLC -v- Williams developing the passage already cited from p. 669.8:
"To affect a person’s dignity on the grounds of sex will, as with other forms of sexual harassment, cause a detriment to that person. Thus, proof of sexual harassment, of whatever form, will satisfy the criterion. Because the conduct which constitutes sexual harassment is itself gender-specific, there is no necessity to look for a male comparator. Indeed, it would be no defence to complaint of sexual harassment that a person of the other sex would have been similarly so treated: see Porcelli -v- Strathclyde Regional Council [1986] IRLR 134." I have added the emphasis.

The judgments of the President of the Employment Appeal Tribunal always command respect but I regret I do not fully agree with what fell from the him on this occasion. I agree that the kind of conduct which constitutes sexual harassment can be, indeed usually is, gender-specific. It was in Porcelli. The abuse to which she was subjected was being shown a screw nail and asked if she wanted a screw and being shown a penis-shaped glass rod holder and asked if she had use for it. It was this sort of behaviour which ineluctably compelled the conclusion that:

"In my opinion this particular part of the campaign was plainly adapted against the applicant because she was a woman. It was a particular kind of weapon, based upon the sex of the victim, which, as the industrial tribunal recognised, would not have been used against an equally disliked man:” per the Lord President at p.569E, with my emphasis added.

“If any (of the weapons used against the complainer) could be identified as what I call “a sexual sword,” and it was clear that the wound it inflicted was more than a mere scratch, the conclusion must be that the sword had been unsheathed because the victim was a woman:” per Lord Grieve at p. 573G.


These are conclusions of fact. Why I disagree with the observations of Morison J. is that he seems to elevate a conclusion of fact - usually, in the context of the case, an absolutely inevitable conclusion of fact - into a principle of law. Picking up the emphasis I added to his judgment, it is not the case that because the abusive conduct is gender-specific that there is no necessity to look for a male comparator; but it is rather the case that if it is gender-specific, if it is sex-based, then, in the nature of the harassment, it is almost certainly bound as a matter of fact to be less favourable treatment as between the sexes. The male employee would never have been subjected to the indignity of being asked if he wanted a screw or had use of the phallic rod holder. Thus, in those circumstances, there is no need for a comparator simply because res ipsa loquitur.

However, once the discrimination is not “based on stereotypical assumptions as to gender characteristics” - to borrow Simon Brown L.J.’s words in Smith - then the matter is no longer straightforward. The case will be different when it is not a “gender-based criterion (which) is the basis upon which the complainant has been selected for the relevant treatment,” in the words of Lord Goff in James v. Eastleigh B.C supra. As soon as the premise that the campaign is sex/gender-based is called in question, then, as Porcelli established, the proper questions are those imposed by the disciplines of sections 1(1)(a), 5(3) and 6(2)(b). When the harassment is, as is alleged here, the taunting of a male homosexual with the scorn of his being gay, of his being a risk to the spreading of disease and with the wish that gay people, by implication, like him, should be banished to a remote island, then it is not immediately apparent that the harassment is based on sex as opposed to sexual orientation. It may be easy to conclude, as the Tribunal did, that the applicant was being differently treated from a comparable man who was not homosexual and that but for his homosexuality this would not have happened. But that is not the enquiry directed by the Act. The proper questions are whether he is being differently from a woman in comparable circumstances (section 1(1)(a) read with section 5(3) ), and, if so, was this differential treatment on the ground of sex (within section 1(1)(a) ). The search for the appropriate comparator was a necessary one in this case.
6. The homosexual comparator argument: This gains its authority from the judgment of Simon Brown L.J. quoted above:-
"If, of course, an employer were willing to employ lesbians but not male homosexuals, that would be discrimination on the grounds of sex."

I agree with that observation. It fits into the scheme of the Act and in particular applies to Section 5(3) because homosexuality as such is the relevant circumstance which must remain the same for the purpose of the comparative analysis required by section 5(3). To compare like with like, a male homosexual must be compared with a female homosexual.
7 The heterosexual comparator argument: This is more subtle, and I hope I do the argument justice. Homosexuality may be defied as the sexual attraction felt for members of the same sex but in any given case of alleged sex discrimination, the individual applicant’s sexual orientation can only be defined by reference to the sex of that individual. Thus in this case this is a man who is sexually attracted to other men. For the purposes of Section 5(3) the relevant circumstance in his case is attraction to men. For the comparative exercise to be properly undertaken, only the sex of the complainant must change and all other circumstances must remain constant and be brought to bear on the opposite sex. So the comparator is a woman to whom that applies: hence a woman attracted to men, a heterosexual woman. Ms Cox drew our attention to an article by Robert Wintemute “Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes” [1977] 60 Modern Law Review 334. He writes:-
"If a man complains that he has been treated differently because he has a male partner, the usual response is that there is no direct sex discrimination because a woman who has a female partner would be treated in the same way. This comparison avoids a finding of direct sex discrimination by changing not only the sex of the man, but also the sex of his partner. Yet for a valid sex discrimination analysis, the comparison must change only the sex of the complaining individual, and must hold all other circumstances constant. Otherwise, a change in some other circumstance (such as the complaining individual’s qualifications, their choice of job or the sex of their partner) could hide the sex discrimination. If an employer refused to hire a woman with the required university degree, her comparator would not be a man without the required university degree. She would reply: “I have the required degree. You have changed both my sex and my qualifications. Change only my sex and compare me with a man with the required degree." If a man wanting to be a nurse challenged a rule that only women could be nurses and only men could be doctors, his comparator would not be a woman wanting to be a doctor. He would reply: “I don’t want to be a doctor. I want to be a nurse. You have changed both my sex and my choice of job. Change only my sex and compare with a woman wanting to be a nurse.” Similarly, a man with a male partner compared with a woman with a female partner would reply: “My partner is male not female. You have changed both my sex and the sex of my partner. Change only my sex and compare me with a woman with a male partner.” If the sex of the man is changed, but the sex of his male partner is held constant, the man’s comparator is a woman with a male partner and the direct sex discrimination is clear. If the sexes of both the man and his partner are changed, the man’s comparator becomes a woman with a female partner and the direct sex discrimination disappears with a wave of the magician’s wand."

I see the force of the argument but I reject it.
To establish who the appropriate comparator is in this case must depend upon how one determines what the relevant circumstances of the case are. The “relevant circumstances” have to be identified in order to carry out the Section 5(3) comparison. The structure of Mr Wintemute’s argument is built upon the foundation that the homosexual man’s complaint was that he had been treated differently because he had a male partner - my emphasis being added. That may not always be the relevant circumstance. It seems to me that the nature of the complaint and the factual matrix in which it is made will determine in each case, judged on its particular facts, what the relevant circumstances are in that case.

What then was this applicant’s complaint? It fell into two quite separate and distinct parts. The first related to way he was treated by Ms Touhy. The second was the way he was treated by his employers. He was accused by her of flirting with male customers and talking in detail about his love life. He complained of “her attitude towards me as a gay man”, of her asking “personal questions regarding my sexuality”, and her making “offensive remarks about my being gay”, for example, that he ”probably had all sorts of diseases and that gay people who spread Aids should be put on an island.” He concluded: “ I believe I have been subjected to unlawful sex discrimination contrary to the SDA in Ms Touhy’s allegations which would not have been made against a gay woman. ” I have added the emphasis to show how he has, correctly in my judgment, chosen his true comparator. His case as he has framed it can only be judged when the comparison is made with the treatment which a gay woman would have received. It was his homosexuality as such which was correctly identified by him to be the distinguishing feature and so the relevant circumstance of his case, and it was that factor which had to remain the constant factor in the case of the comparator.

One can test the matter this way: if an employer is willing to accept female employees without a university degree, but will not accept male employees for the same job without it, the proper comparator, when unsuccessful male applicant for employment makes his complaint under Section 1 of the Act, must be a female employee without a university degree. The lack of qualification is the personal characteristic of the applicant which must be regarded as the “relevant circumstance” for the purpose of making the comparison required by Section 5(3). It can be no different if the relevant personal characteristic of the complainant happens to be homosexuality.

Accordingly I find that for this part of the case the comparator is a homosexual woman.
8. The second and distinct part of the complaint is equally clear. It is:-
"I think I was further discriminated against on the grounds of my sex in that my employers chose to believe Ms Touhy rather than myself ," my emphasis being added.

Thus he believed that he had been subjected to unlawful sex discrimination contrary to the SDA in:-
"the conduct by my employers of the disciplinary process and the decision to dismiss me rather than Ms Touhy ," again my emphasis added.

Both in respect of his complaint that his employers believed her but not him, and also his complaint that, having found as they did, they dismissed him, not her, he has chosen his own comparator. What he complains of is the actual treatment he has received compared with the actual treatment Ms Touhy received. No hypothetical comparator is required to be found for this purpose. The comparator is Ms Touhy herself.
10. Accordingly I would allow this appeal and remit the matter to the Industrial Tribunal for decision. It will be their task to make the following findings:-
(a) Treatment. What was the treatment in fact meted out to applicant (i) by Ms Touhy, (ii) by those investigating the complaints of misconduct and (iii) by those deciding to dismiss him? With regard to the alleged sexual harassment by Ms Touhy, it will also be necessary also to consider whether her actions were “in the course of her employment,” which is a matter of fact to be decided by giving that phrase the broad meaning it would have for a layman “with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort” - per Waite L.J. in Jones v. Tower Boot Co. Ltd. [1997] ICR 254, 265D.?
(b) The comparison and the c omparator. If he was subject to homophobic abuse from Ms Touhy was that treatment less favourable than would have been meted out to a homosexual woman in a similar position to him? The tribunal will have to consider whether similar abuse comment would have been made to and/or of a lesbian. In not believing him but believing Ms Touhy, and in dismissing him and not her, was he treated less favourably than she was in the process of investigation of the complaints and counter-complaints and in the eventual decision to dismiss him?
(c) Causation. This will always remain the crucial and troublesome question. Even if the Tribunal are satisfied that Ms Touhy would not have behaved towards a lesbian as she behaved towards him and that he suffered detriment accordingly, and/or even if he was less favourably treated in the disciplinary proceedings than she was, the vital question still is: was this different treatment on the ground of sex, applying the “but for” test as that has been explained in James -v- Eastleigh Borough Council and O’Neill -v- St Thomas More School as set out above? It will not be enough for him to show that he was less favourably treated because he was a homosexual, since that is a differentiation on the ground of sexual orientation, not on ground of sex. In the case of Ms Touhy’s alleged harassment, he must establish that it was the fact of his being male that caused her to treat him in a way which was less favourable than the way she would have treated a female with the same personal characteristic of homosexual preference. In the case of the discrimination alleged against the managers, he must prove that they decided against him effectively and predominantly because he was a man whereas Ms Touhy was a woman. The focus of the whole enquiry has to be directed to the question: but for the fact he is a man, would he have suffered discrimination?

SIR CHRISTOPHER SLADE:


There is no need to recapitulate the facts of this case. These are clearly set out in the judgments of Beldam L.J. and Ward L.J., which I have had the advantage of reading in draft.

The preliminary point of law identified by the Industrial Tribunal was whether or not the appellant’s claim of discrimination “on grounds of his sexual orientation” was within the Tribunal’s jurisdiction under the provisions of the Sex Discrimination Act 1975 (“the Act”). Having attached this label to the claim, the Tribunal decided that it did not fall within its jurisdiction and accordingly dismissed it. The Employment Appeal Tribunal decided that the Industrial Tribunal had reached the correct decision on this point and that there was no reason to remit the case to the Industrial Tribunal for further consideration.

At the time when these two Tribunals gave their decisions, the judgment of the European Court of Justice in Lisa Grant -v- South-West Trains Ltd [Case C-249/96] had not yet been handed down. In that case the Court held in terms (at p.8) that “Community law as it stands at present does not cover discrimination based on sexual orientation, such as that in issue in the main proceedings”. Superficially, therefore, that judgment lends strong support to the decisions of the Tribunals below.

In my judgment, however, things have gone wrong in this case for three reasons. First, for the reasons given by my Lords, as a matter of principle, it would have been far better if the Industrial Tribunal had proceeded to hear the case in full, instead of attempting to isolate a preliminary question of law.

Secondly, having made the attempt, it formulated a question which in my judgment was not an appropriate one, because it overlooked the possibility that, on the particular facts of some cases, discrimination which is motivated by considerations relating to the claimant’s sexual orientation may be capable of constituting “discrimination” falling within section 1(1)(a) of the Act. Simon Brown L.J. gave a simple example of such a case in a sentence in his judgment in R -v- Ministry of Defence Ex p. Smith [1996] I.C.R.740. at p.766, saying; “If, of course, an employer were willing to employ lesbians but not male homosexuals, that would be discrimination on grounds of sex”. The correctness of that proposition, which Simon Brown L.J. regarded as self-evident, was not challenged in this Court. True it is that in many cases where the discrimination is motivated by considerations relating to the claimant’s sexual orientation, this will not be capable of falling within section 1(1)(a), because it will be based solely on such considerations and cannot properly be described as being “on the ground of [his] [her] sex”. Simon Brown L.J. gave an example of such a case in the same judgment where he said (ibid): “Where, as here, an employer refuses to accept homosexuals of either sex, that is discrimination on grounds of orientation”. In such circumstances the discrimination cannot properly be described as being on the ground of the complainant’s sex, because it is applied equally to persons of both sexes. Similarly, in the Grant case the condition regarding travel concessions, imposed by the undertaking’s regulations, applied in the same way to both male and female workers, so that it could not be said to be based on the sex of the worker. In my judgment, however, the two Tribunals below, by failing to recognise the possibility that in some circumstances discrimination stemming from the victim’s sexual orientation may at the same time constitute discrimination “on the ground of [his] [her] sex”, erred in law.

The third reason why in my judgment things have gone wrong in this case is that the Tribunals below failed to take adequate account of the fact that the appellant’s complaints are made under two distinct heads, namely (a) those based on the conduct of Ms Touhy and (b) those based on the conduct by his employers of the disciplinary process and their decision to dismiss him rather than Ms Touhy, and that different considerations may apply to these two heads. Though this is not entirely clear, one possible reading of the appellant’s second head of complaint is that the reason why his employers treated him as he alleges was simply because he was a man and Ms Touhy was a woman, and not because he was homosexual. The question formulated by the Industrial Tribunal for its decision was in my judgment an inappropriate one for the further reason that it failed to take account of the matters referred to in this paragraph.

For these reasons I agree that this appeal must be allowed and that the matter must be remitted to the Industrial Tribunal.

It remains to consider the guidance which should be given to that Tribunal. Plainly, its first task will be to find the facts, throughout bearing in mind the two separate heads under which the appellant’s complaints are made. It will then be necessary to consider each of these complaints in turn, in the light of the relevant statutory provisions.

As to the first head of complaint, for the reasons given by Ward L.J., I agree that the proper comparator must be a homosexual woman. If I have correctly understood Beldam L.J’s judgment, he is of the opinion that, if sexual harassment by Ms Touhy is proved, the simple question for the Tribunal will be whether the harassment occurred because the appellant was a man rather than a woman, and that, in posing the question, his sexual orientation will be irrelevant. With great respect, I find myself unable to agree with his conclusion on this point for the reasons given by Ward L.J. in his judgment, with which reasons I am in full agreement. I would like to add the following observations in this context.

Sexual harassment is not as such specifically provided for in the Act and in my judgment gives rise to no points of legal principle different from any other claim made in reliance on section 6(2)(b) of the Act. If it is to give rise to a claim in the present case at all, it will not be enough for the appellant to show that, by reason of such harassment, he has been subjected to “detriment” within the meaning of section 6(2)(b). He will also have to show that the subjection to such detriment constituted discrimination within the meaning of section 1(1)(a). While section 1(1)(a) will oblige him to satisfy the Tribunal that Ms Touhy treated him less favourably on the ground of his sex than she would have treated a woman, section 5(3) will require that in effecting such comparison the Tribunal shall compare like with like: (see Bain -v- Bowles [1991] IRLR 356 at p.358 per Dillon L.J.).

In my judgment the only proper way for the Tribunal to compare like with like will be to compare the treatment which Ms Touhy directed to the appellant with the treatment she would have directed to a female homosexual. If the facts were to show that she had a rooted aversion to homosexuals of either sex and that she would have subjected a female homosexual to the like harassment, the appellant’s claim under this head would inevitably fail because no discrimination under section 1(1)(a) would have been established. In my judgment the appellant’s only hope of success under this head will lie in satisfying the Tribunal that the harassment occurred because he was a man with a particular relevant personal characteristic rather than a woman with the same relevant characteristic. The relevant characteristic in the present case happens to be homosexuality. It might have been some form of physical disability (e.g. blindness) or lack of an educational qualification (e.g. a university degree), in which case similar principles would in my judgment have fallen to be applied. I do not for my part see how the Industrial Tribunal can be expected to reach the right answer in regard to the first head of complaint unless the question which it asks itself includes a reference to such highly relevant characteristic of the appellant.

I should add that neither the decision in Grant nor any other authority cited to us in my judgement precludes the possibility of a valid claim under section 1(1)(a) of the Act arising from discrimination against homosexuals of one sex in circumstances when it would not have been directed against homosexuals of the other sex. This possibility was specifically envisaged by Simon Brown L.J. in the passage from his judgment in the Ministry of Defence case quoted above.

I have nothing further to add to what Ward L.J. has said by way of guidance to the Tribunal on the first head of claim, except to agree that it will be necessary for the Tribunal to consider also whether Ms Touhy’s actions were in the course of her employment. As to the second head, I agree that the proper comparator will be Ms Touhy herself.

I have found this case very difficult, but, for the reasons already stated, I agree that this appeal should be allowed and that the matter should be remitted to the Industrial Tribunal.

LORD JUSTICE BELDAM: On 11th April 1994 the appellant Paul Smith, a homosexual, was dismissed from his employment as a barman by the respondents for gross misconduct. His dismissal followed a complaint made by another employee, Miss Barbara Touhy, who alleged he had treated her in a threatening and aggressive manner. The appellant disputed this. He said that Miss Touhy:
“... alleged that I had been abusive and threatening towards her, that I flirted with male customers and that I insisted in talking in detail about my love life. None of this was true, although I accept I did not get on with Ms Touhy and we did argue because of her attitude towards me as a gay man and because of her use of drugs at work which made her incapable of doing her duties.

I had worked with Ms Touhy for approximately 9 days after her transfer from another bar. From the outset Ms Touhy constantly asked personal questions regarding my sexuality and made offensive remarks about my being gay. For example, she said I probably had all sorts of diseases and that gay people who spread AIDs should be put on an island.”



The appellant complained that on one occasion Miss Touhy had assaulted him by punching him in the back.

After two disciplinary hearings, the respondents upheld Miss Touhy’s complaints of threatening and aggressive behaviour and dismissed the appellant for gross misconduct. The appellant, who had been employed for less than two years, complained to an Industrial Tribunal that he had been subjected to unlawful sex discrimination contrary to the Sex Discrimination Act 1975 because:
“a. Ms Touhy’s allegations, would not have been made against a gay woman.

b. the conduct by my employers of the disciplinary process and the decision to dismiss me rather than Ms Touhy.”



When the case came before the North London Tribunal on 24th May 1995, instead of deciding the facts, the tribunal purported to identify a question of law and heard legal argument. It said:
“For the purposes of the argument, we have accepted the hypothesis that Mr Smith was sexually harassed by reason of his sexual orientation in employment and that he suffered less favourable treatment by reason of his sexual orientation when he was dismissed from that employment.”



On the assumption that Miss Touhy had directed sexual harassment at the appellant because he was a homosexual male, there was extensive argument before the tribunal whether in comparing the case of the appellant with a female employee she should be of homosexual or heterosexual inclination.

The Industrial Tribunal rejected the appellant’s claim, holding that under the Sex Discrimination Act 1975 discrimination on grounds of sexual orientation was not within the jurisdiction of the tribunal. The appellant appealed to the Employment Appeal Tribunal. He argued that the tribunal was wrong in law to hold that it had no jurisdiction under the Sex Discrimination Act 1975 to entertain the appellant’s complaint of discrimination by reason of his sexual orientation and alternatively that the tribunal erred in law in wrongly failing to hear evidence going to the question whether the respondent subjected the appellant to a detriment to which it would not have subjected a homosexual woman. The Appeal Tribunal upheld the decision of the Industrial Tribunal. It held that it did not have to examine the question whether a comparator had to be found, let alone whether such a comparator would be a heterosexual or homosexual woman. The appellant appeals from that decision.

There were originally five grounds of appeal. The first three grounds contended that the Employment Appeal Tribunal should have held that in s.1(1)(a) of the Sex Discrimination Act 1975 the word “sex” was not limited to gender but extended to sexual orientation. Ground 4 alleged:
“The Employment Appeal Tribunal should have held that in s.5(3) of the said Act the relevant circumstances should be construed as excluded sexual matters in respect of which the discrimination occurred.”
(Sic).


And Ground 5 that, in the alternative, the Employment Appeal Tribunal should have held that one relevant comparator to the appellant was a heterosexual woman.

In the first three grounds the appellant had hoped to persuade the court by reference to art.2 of the Equal Treatment Directive 76/207/EEC and the decision of the European Court of Justice in P -v- S and Cornwall County Council [1996] IRLR 347 that, properly interpreted, the provisions of the Sex Discrimination Act 1975 did include discrimination on grounds of sexual orientation.

The first three grounds of appeal were abandoned by Miss Laura Cox Q.C. following the decision of the European Court of Justice on 17th February 1998 in the case of Grant -v- South West Trains Ltd. (Case C-249/96).

The Court of Justice in that case pointed out that, while the European Parliament had declared that it deplored all forms of discrimination based on an individual sexual orientation, it was nevertheless the case that the Community had not as yet adopted rules providing for such equivalents. It further held that Community law as it stands at present does not cover discrimination based on sexual orientation. Miss Cox, however, pursued the other two grounds of appeal directing her submissions to an argument that the Industrial Tribunal and the Employment Appeal Tribunal were obliged to address the question whether the relevant circumstances in the appellant’s case and that of a hypothetical female with whom his case was compared were the same or not materially different; that the female with whom the comparison was made should be assumed to be homosexual or, alternatively, heterosexual and invited the court to remit the case to the Industrial Tribunal for argument whether the appellant was subjected to less favourable treatment on the basis of such a comparison.

The appellant’s complaints.

The first ground of complaint made by the appellant is that Miss Touhy discriminated against him in circumstances relevant for the provisions in s.6(2)(b) because on grounds of his sex she treated him less favourably than she would treat a woman by subjecting him to a detriment. (See s.1, s.2 and s.6(2)(b) of the Act).

The appellant’s second complaint was that in the disciplinary proceedings the respondents through their manager had, by dismissing him, treated him less favourably than they treated Miss Touhy.

By s.5(3) the provisions of the Act have to be interpreted so that in making a comparison in the cases of persons of different sex the relevant circumstances in the one case are the same or not materially different in the other. “The relevant circumstances” refers back to the words of s.1(1) and means the circumstances in which a person discriminates against a woman or a man relevant for the purposes of any provision of the Act.

The first complaint.

Sexual harassment by one employee of another of either sex at work which causes or may cause the victim to wish to leave the employment is a detriment. In Porcelli -v- Strathclyde Regional Council [1986] ICR 564, an appeal from the Employment Appeal Tribunal, Scotland, to the Inner House, the Lord President, Lord Emslie, said of sexual harassment of a female employee by two male colleagues who disliked her that:
“... the treatment which I have labelled “sexual harassment” - a weapon which would not have been employed in a comparable campaign against such a man ... was treatment of the applicant because she was a woman, regardless of the motive behind it, and the tribunal’s error was in failing to appreciate that the applicant, being exposed to that treatment, was to that extent being treated on the ground of her sex less favourably than an equally disliked male colleague would have been.”



And later:

“Although it is necessary for a woman seeking to found a claim upon s.6(2)(b) of the Act to establish that her employer had discriminated against her by dismissing her or subjecting her to some other detriment it is accepted by the employers for the purposes of this appeal, that if the applicant who was not dismissed was discriminated against within the meaning of s.1(1)(a) she was subjected to a detriment within the meaning of s.6(2)(b). The employers, in my opinion, were well advised to make that concession on the facts of this case for, as was pointed out by Brandon L.J. in Ministry of Defence -v- Jeremiah [1980] ICR 13, 26, “detriment” simply means “disadvantage” in its statutory context.”



Lord Emslie later identified two questions: (first) was the applicant subjected by Coles and Reid to treatment on the ground of her sex (i.e. because she was a woman) and (second) if so, was she treated less favourably than the man with whom she falls to be compared would have been treated by these men?

Later Lord Emslie pointed out:

“Section 1(1)(a) is concerned with “treatment” and not with the motive or objective of the person responsible for it. Although in some cases it will be obvious that there is a sex related purpose in the mind of a person who indulges in unwanted and objectionable sexual overtures to a woman or exposes her to offensive sexual jokes or observations that is not this case. But it does not follow that because the campaign pursued against the applicant as a whole had no sex related motive or objective, the treatment of the applicant by Coles, which was of the nature of “sexual harassment” is not to be regarded as having been “on the ground of her sex” within the meaning of s.1(1)(a). In my opinion this particular part of the campaign was plainly adopted against the applicant because she was a woman. It was a particular kind of weapon, based upon the sex of the victim, which, as the industrial tribunal recognised would not have been used against an equally disliked man.”



After referring to the reasons given by the Industrial Tribunal who had dismissed the claim, he said that they had proceeded only upon their view that Coles and Reid would have treated an equally disliked male colleague just as unfavourably as they had treated the applicant. It was at that point that the decision of the tribunal was vulnerable. Where they had gone wrong was in failing to notice that a material part of the campaign against the applicant consisted of sexual harassment, a particularly degrading and unacceptable form of treatment which it must be taken to have been the intention of Parliament to restrain. In British Telecommunications plc -v- Williams [1997] IRLR 668 Morison J., President, said at 689(8):
“Discrimination on the grounds of sex can take many forms. Sexual harassment is a particular form. Sexual harassment can best be defined as unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work. To affect a person’s dignity on the grounds of sex will, as with other forms of sexual harassment, cause a detriment to that person. Thus, proof of sexual harassment, of whatever form, will satisfy the criterion. Because the conduct which constitutes sexual harassment is itself gender specific, there is no necessity to look for a male comparator. Indeed, it would be no defence to a complaint of sexual harassment that a person of the other sex would have been similarly so treated: see Porcelli -v- Strathclyde Regional Council [1986] IRLR 134.”



In that case Morison J. was considering alleged harassment by a man of a woman which could properly be described as “gender specific”. It is not difficult to imagine circumstances in which sexual harassment by a man may be directed at a homosexual man or at a heterosexual man; or a woman may sexually harass another woman who is homosexual or who is heterosexual. In each case the detriment to the victim is likely to be the same: revulsion, humiliation or degradation leading to reluctance to continue in the employment and a desire to leave by reason of the harassment. Moreover the objectionable conduct of a sexual nature may consist simply of unwanted and repeated sexual overtures or it may be abuse resulting from the rejection of those overtures so that, for example, the heterosexual victim of repeated homosexual advances which are objectionable may resent them as greatly and suffer detriment equal to or not significantly different from the detriment suffered by a homosexual victim of similar advances; or unwanted advances by a heterosexual person may be found as objectionable by a homosexual as by a heterosexual victim.

In Bain -v- Bowles [1991] IRLR 356 Dillon L.J. used the convenient catch phrase “compare like with like” to paraphrase the words of s.5(3) of the Act. Though no doubt apposite to the majority of cases, the catchphrase may in some cases disguise the need to enquire whether a circumstance is really relevant to the conduct complained of in the particular case. In the circumstances of this case it is as irrelevant to consider the sexual orientation of the victim as it was in Porcelli’s case to consider whether the employees there concerned would similarly have treated a man whom they disliked. In the case of a male victim, the question is whether he was treated in the way he was because he was male, not because he was a male with a particular sexual inclination. Nor in deciding that question is it a material consideration that a female with similar or any other sexual inclinations would have been treated in the same way if she would not, as a female, to have been so treated in any circumstances. I agree with Morison J. that in general in cases of sexual harassment there is no necessity to look for comparison with a particular person of the opposite sex. In the case of a man who sexually harasses a woman at work, it will usually be the case that the man would not have sexually harassed another man and it is in this sense that Morison J. used the phrase “sex specific” but, as Lord Emslie pointed out, the question is whether the sexual harassment took place because of the sex of the victim, not whether it would have amounted to sexual harassment of a person of the opposite sex; equally the question is not whether the sexual harassment would have amounted to sexual harassment of a person of the opposite sex who has particular sexual inclinations.

For this reason I think the argument directed to the sexual inclinations of an employee of the opposite sex is misplaced and irrelevant. Moreover, it being conceded that discriminatory treatment of a person on grounds of sexual orientation does not amount to discrimination on ground of sex, I do not see how the sexual orientation of the victim is to be regarded as a relevant circumstance and, if it is not relevant in the case of the victim, it cannot be relevant in the case of the person of the opposite sex with whom comparison is made.

In his judgment in British Telecommunications plc -v- Williams, Morison J. also said:
“Allegations of unlawful discrimination of any kind are allegations of unpleasant conduct. In cases such as these, it is likely that the parties will have strongly-held conflicting views as to what took place. It is the more so when the allegation is of sexual harassment, as in this case. Accordingly, it is the duty of the industrial tribunal to make clear in their decision precisely what facts they have found proved and precisely in what form the discrimination has been found proved. To make suggestions of improper conduct, without specific findings, is unfair to both parties ...”



It is equally undesirable in my view that an Industrial Tribunal should proceed to hear legal argument in such cases without first deciding what actually occurred. In the present case the appellant’s allegations are strongly contested and bear little relation to the facts set out in the respondent’s answer.

Before embarking on legal argument the Tribunal would have been well advised to have decided what the facts were, whether Miss Touhy had subjected the appellant to the kind of remarks he alleged and whether in extent and degree it amounted to sexual harassment.

As to the second complaint made by the appellant, the short question for the tribunal is whether, having regard to the finding it makes concerning the conduct of Miss Touhy and the appellant, the respondents by dismissing the appellant and not Miss Touhy discriminated against the appellant on the ground of his sex.

For these reasons I consider the matter must be remitted to the Industrial Tribunal.

ORDER: Appeal allowed; no order for costs. ( This order does not form part of the approved judgment )


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