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United Kingdom Employment Appeal Tribunal

You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Macdonald v Ministry of Defence [2000] UKEAT 0121_00_1909 (19 September 2000)
Cite as: [2001] ICR 1, [2000] UKEAT 0121_00_1909, [2001] 1 All ER 620, [2001] HRLR 5, [2000] IRLR 748, [2001] Emp LR 105

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BAILII case number: [2000] UKEAT 0121_00_1909
Appeal No. UKEAT/0121/00

             At the Tribunal
             On 19 September 2000







Transcript of Proceedings


© Copyright 2000



    For the Appellant Mr A O'Neill, Queen's Counsel
    Instructed by-
    Messrs Anderson Strathern
    Employment Unit
    48 Castle Street
    For the Respondents Mr I D Truscott, Queen's Counsel
    Instructed by-
    Messrs Robson MacLean WS
    28 Abercromby Place



  1. This is an appeal at the instance of the applicant appellant against a decision of the Employment Tribunal in respect of his claim that he had been discriminated against unlawfully on grounds of sex, contrary to the Equal Treatment Directive 76/207/EEC and section 6 of the Sex Discrimination Act 1975 (SDA). He also had a consequent claim for sexual harassment which raises similar but separate issues. Both claims were dismissed.
  2. The appellant is homosexual. He is 35 years of age and was commissioned initially in the Intelligence Corps (Territorial Army) in May 1986. He subsequently enlisted as an officer cadet in the Royal Air Force and was commissioned and subsequently promoted to various posts culminating in a period of service at RAF Aldergrove. He then arranged for a transfer to the Scottish Air Traffic Control Centre (Military) at Prestwick, largely for compassionate reasons to be closer to a relative who was ill. He realised this would involve certain vetting procedures, in the course of which he was asked to declare whether he was a homosexual, to which he agreed. He subsequently also made that declaration to his commanding officer. These declarations led eventually to his compulsory resignation under Queen's Regulation 2905. His last paid day of service being 27 March 1997.
  3. He subsequently made a timeous application to the then Industrial Tribunal claiming discrimination on the grounds stated and sexual harassment and compensation, which came to a hearing in July and September 1999.
  4. The Tribunal made a number of findings of detailed fact, not least in relation to the interview conducted in the vetting process by a Wing Commander Leeds which was the basis of the claim for sexual harassment. In that latter respect there were some factual discrepancies disputed before us, the Tribunal not being satisfied that the vigorous questioning by the officer in relation to the appellant's sexuality and its content was sexually motivated as far as the Wing Commander was concerned. It considered it was more part of what he perceived to be a strenuous vetting process. Nevertheless, there was little doubt and it was so found that the interview was distressing and distasteful to the appellant. We put that matter aside for the time being and turn to the real issue in the case.
  5. It was not disputed that the appellant's employment in the Royal Air Force was terminated by reason of his admitted homosexuality but the substance of the decision against him is that the SDA, insofar as it refers to the word "sex", is concerned with gender and not sexual orientation. The admitted reason therefore for the termination of the appellant's employment does not fall, in the view of the Employment Tribunal, within the scope of discrimination envisaged by the 1975 legislation.
  6. It has to be noted that the principal argument before the Tribunal concerned whether or not, there being uncertainty in the law as to the proper definition or construction to put upon the word "sex", in the 1975 Act, the Tribunal should make a reference to the European Court of Justice. It also has to be noted that subsequent to the hearing but prior to the issue of the judgment, the European Court of Human Rights in Strasbourg issued a judgment best found as Smith & Grady v United Kingdom [1999] IRLR 734 in which it held that investigations by the Ministry of Defence into the homosexual orientation of the two appellants violated their human rights in terms of Article 8 of the European Convention on Human Rights. The basic facts of this case and its sister case, Lustig-Prean and Beckett are indistinguishable from the present case inasmuch that all four applicants in the Strasbourg Court were maintaining violation of their human rights in terms of the Convention by reason of being dismissed from the Services as a consequence of being homosexual, in terms of the policy then adopted by the Ministry of Defence which was to the effect that homosexuality is incompatible with service in the Armed Forces and that persons who were known to be homosexual and to engage in homosexual activity, are administratively discharged from the Armed Forces. The European Court of Human Rights upheld their contention with the result that subsequent to the hearing in this case before the Tribunal below, for the first time the European Court of Human Rights has interpreted the Convention so as to protect the rights of homosexuals, albeit under the right to privacy.
  7. The operative part of the Tribunal's judgment in relation to this general question is to be found on page 22 of their decision as follows:-
  8. "The Tribunal recognises that the decision of the European Court of Human Rights in Smith and Grady (and indeed the related case of Lustig-Prean & Beckett - Applications Nos 31417 and 32377/96) represent a significant landmark in the campaign of those seeking the elimination of the Services' policy on homosexuality. The Tribunal understands that in the light of the rulings by the European Court of Human Rights the UK Government has suspended all action against homosexuals facing dismissal from the forces. Apart from any other consideration the rulings will have particular significance in the United Kingdom when the Human Rights Act 1998 comes into force in October 2000. In the context of this case the rulings do no more than establish that the treatment of the applicants breached rights embodied in the Convention. Those rights existed prior to the rulings. They existed at the time of the ECJ decision in Grant. While therefore the Tribunal recognises that the rulings of the European Court of Human Rights represent a significant advance in the overall cause of persons such as the applicant in the present case it does not find that they advance in any way the argument that the Tribunal should make a reference of the kind which it is being asked to make.
    In any event the ECJ did have in consideration "human rights issues" when it made the decision in Grant. As noted above Mr O'Neill quoted at length from the judgment of the ECJ in Grant in an effort to illustrate the extent to which the Court drew from the case law of the European Court of Human Rights. In Grant having summarised the case before it the Court observed (paragraph 24, page 218):-

    "In the light of all the material in the case, the first question to answer is whether a condition in the regulations of an undertaking such as that in issue in the main proceedings constitutes discrimination based directly on the sex of the worker. If it does not, the next point to examine will be whether Community law requires that stable relationships between two persons of the same sex should be regarded by all employers as equivalent to marriages or stable relationships outside marriage between two persons of opposite sex. Finally, it will have to be considered whether discrimination based on sexual orientation constitutes discrimination based on the sex of the worker."

    The passages (paragraphs 29 to 35, page 218) quoted by Mr O'Neill in his supplementary submissions represent the Court's observations on the second of the three questions identified by it in paragraph 24 of its judgment. It is the third of the three questions set out there which principally concerns this Tribunal. The Tribunal notes that when it came to deal with this question the ECJ recorded a submission made by Miss Grant that the Community provisions on equal treatment of men and women should be interpreted as covering discrimination based on sexual orientation. She referred the Court in particular to the International Covenant on Civil and Political Rights of 19 December 1966 (United Nations Treaty Series, vol. 999, page 171) in which, in the view of the Human Rights Committee established under Article 28 of the Covenant, the term 'sex' is to be taken as including sexual orientation. Having noted that submission the ECJ made these observations (paras 44 and 45, page 219):-
    "The Covenant is one of the international instruments relating to the protection of human rights of which the Court takes account in applying the fundamental principles of Community law (see, for example, case 374/87 Orkem v Commission [1989] ECR 3283, paragraph 31, and joined cases C-297/88 and C-197/89 Dzodzi v Belgian State [1990] ECR 1-3763, paragraph 68).

    However, although respect for the fundamental rights, which forms an integral part of those general principles of law is a condition of the legality of Community acts, those rights cannot in themselves, have the effect of extending the scope of the Treaty provisions beyond the competences of the Community (see inter alia, on the scope of Article 235 of the EC Treaty as regards respect for human rights, Opinion 2/94 [1996] ECR1-1759, paragraphs 34 and 35)."

    It appears to the Tribunal that what the Court said about fundamental rights being incapable in themselves of having the effect of extending the scope of the Treaty provisions beyond the competences of the Community effectively answers Mr O'Neill's argument on the "human rights issues." This ties in with what the ECJ said later in Grant about the provision in the Treaty of Amsterdam for the insertion into the EC Treaty of an article which will allow the Council to take appropriate action to eliminate, among other forms of discrimination, discrimination based on sexual orientation. As Lightman J said in Perkins No. 2 (para 10, page 510):-

    "It is a matter for the Council to make this extension in Community rights, not the ECJ."

    In short the Tribunal finds itself in no different a position than Lightman J in Perkins No. 2 in dealing with the request that it should make a reference to the ECJ. Having reviewed the authorities and the detailed and careful arguments advanced by Mr O'Neill the Tribunal finds that the answer to the question of construction which the proposed reference raises is so obvious as to leave no scope for reasonable doubt. The Tribunal does not know whether, as suggested by Mr Truscott, a reference would be met by a letter from the Administrator of the ECJ inviting the Tribunal to consider withdrawing the reference. The important point is that the Tribunal has no reason to doubt what answer the Court would give to the questions formulated in Mr O'Neill's supplementary submissions were it to address them. For that reason the Tribunal has decided not to make the reference. Further it has decided that in the light of the authorities on the interpretation of both the Directive and the SDA the applicant's complaint of sex discrimination in respect of his enforced discharge from the Royal Air Force falls to be dismissed."

  9. That part of the judgment has to be looked at against the background of other decisions of the English Court and of the European Court as follows:-
  10. R v Ministry of Defence ex parte Smith & Grady [1996] IRLR 100
    R v Secretary of State for Defence ex parte Perkins [1997] IRLR 297
    R v Secretary of State for Defence ex parte Perkins No 2 [1998] IRLR 508
    Smith v Gardner Merchant Ltd [1998] IRLR 510
    Grant v South-West Trains Ltd [1998] IRLR 206

  11. With the exception of the latter case, these cases were all decisions of the English Courts determining, irrespective of issues under the Convention, that the relevant discrimination as to sex in relation to EEC legislation, was that between male and female i.e. an issue of gender. Thus, it can be seen that the substance of the decision of the Tribunal below in refusing a reference, was that the matter had been clearly interpreted and an answer to a reference was obvious and that any claim for discrimination under the SDA or indeed the Equal Treatment Directive, was restricted to, or related to, discrimination as between a male and a female and not based on sexual orientation of persons of the same sex or because of their sexual orientation.
  12. Although the Tribunal below had knowledge of the existence of Smith & Grady before issuing its decision, it seems it did not appear to consider that such bore upon the content of it, (see page 22 of the decision).
  13. There are two other important issues. At the beginning of October 2000, the Human Rights Act 1998 comes into effect within the United Kingdom general law which requires, essentially, that Courts should interpret United Kingdom legislation against the background of, and to be compatible with, the European Convention on Human Rights and it is against that background that the Ministry of Defence changed their policy and abandoned their prohibition on homosexuality within the Services, notwithstanding the Act has yet to come into force. This Tribunal, however, is faced with the fact that very shortly after the issue of our judgment, the Convention will be incorporated into United Kingdom law generally, although it has been within the Scottish jurisdiction for over a year. This, it was submitted by Mr O'Neill on behalf of the appellant, was an important factor with regard to the future, inasmuch that he maintained that his client could not in the long term lose, albeit he was losing at the moment. Whatever may be the position under the Human Rights Act however, we consider we must apply the law at the date of this hearing which means that we cannot have regard to the possible effect on this case in due course of the Human Rights Act. There was an issue between the parties in this respect that the arrival of this Act will not in any event have any retrospective effect which means that this particular application will be never be subject to it by reason of the fact that the alleged discriminatory act occurred before the Human Rights Act came into force. As will be seen we offer no view upon this matter since it need not be focussed for our determination of the issues before us.
  14. However, there is one other matter of some importance. We were informed that in Salgueiro da Silva Mouta v Portugal, an unreported case of the European Court of Human Rights dated 29 December 1999, that Court has ruled that sexual orientation is contrary to its own discriminatory provision, namely, Article 14 of the Convention which uses amongst others the word "sex" in relation to discriminatory acts that can be successfully complained against.
  15. The current state of the law before us is, therefore, within the United Kingdom, that it has been established by the English Courts that the word "sex" has been clearly interpreted as being restricted to a gender interpretation and not a sexual orientation interpretation while the opposite interpretation has been put upon the word both indirectly in Smith & Grady and directly in Salgueiro by the European Court of Human Rights. It has to be said that Mr O'Neill made something of a plea ad misericordiam on behalf of his appellant, that if he was sooner or later to win in Strasbourg, it was unreasonable to require him to exhaust his remedies in this country before so doing but again we are unable to accept this as being relevant to the issue before us which must be determined upon its merits at the present time and upon the law that applies at the present time.
  16. The substance of Mr O'Neill's submission was that it has been accepted prior to the coming into force of the Act in Scots Law, there is a presumption in the common law that the Westminster Parliament intends to legislate in conformity with international commitments including the Convention. Accordingly when a statutory provision is susceptible of more than one interpretation, the Court should give it the construction which complies more closely with these commitments. He referred to Lord President Hope in T, Petitioner [1997] SLT 724 at 733-734. A similar approach had been adopted in O'Neill v HM Advocate [1999] SLT 958 and now to some extent modified by Murray v HM Advocate [2000] JC 102 given that the Convention is part of Scots Law in the criminal context. However, Mr O'Neill submitted that, as a matter of common law, statutory interpretation was required to adopt a position compatible with the Convention even prior to the arrival in the national law of the Convention as a matter of law and he pointed to certain dicta from Lord Hope of Craighead in R v Director of Public Prosecutions ex parte Kebeline and Ors [1999] 4 All ER 801 at 838-839 to the extent of statutory interpretation being generally found to reflect declared fundamental rights and freedoms. Putting aside for the moment any question of ambiguity, he submitted that so long as a national United Kingdom statute was capable in any way of being construed to be compatible with the Convention, that was the line down which the Court should go. It was necessary to identify the relevant Convention Right and only if it was impossible to make it compatible with the relevant United Kingdom legislation, was the Convention to be ignored. He then made a number of submissions under reference to certain foreign cases to support the view that this Tribunal should interpret the word "sex" as being compatible with the Convention at least if it included sexual orientation, given the recent decisions to which we have referred of the European Court of Human Rights. He referred to Toonen v Australia [1984] IHRR 97, Vriend v Alberta [1998] 1 SCR 493, Baehr v Miike an unreported decision of the Supreme Court of State of Hawai'i dated 9 December 1999 and Baker v State of Vermont another unreported decision of that State's Supreme Court dated 20 December 1999. The high point of his submission was that only if it was impossible to interpret a relevant piece of a legislation in terms of compatibility with the Convention should that not happen. He did, however, return to the issue of ambiguity as focussed by Lord Hope in T, Petitioner.
  17. Mr Truscott, responding on behalf of the respondents, accepted the general factual background, albeit disputing some aspects in relation to the sexual harassment issue but he maintained that the law of the United Kingdom in conjunction with the European Court of Justice, has clearly stated in a number of authoritative cases both in relation to equal treatment and equal pay and thus sex discrimination, that it applied only to gender circumstances and not to sexual orientation as between the same sex or in relation to the same sex. There was no room he said, for an ambiguity argument nor should the Convention be applied at all, at least so long as the Human Rights Act was not in force. This was particularly clear from Perkins No 2 supra and a recent decision of the Employment Appeal Tribunal in England, Pearce v Governing Body of Mayfield Secondary School [2000] ICR 920 where the Employment Appeal Tribunal confirmed a decision of the Employment Tribunal that, when the acts complained of were homophobic thus having the result that all homosexuals being treated the same, there was no discrimination on grounds of sex, the issue not being one of gender, there being no suggestion that male and female homosexuals were being treated in a different way. Thus, said Mr Truscott, the current state of the law clearly and without equivocation excludes sexual orientation from an interpretation to be put on the word "sex" in the 1975 Act and thus the present application effectively is incompetent. The Tribunal thus came to the correct decision. There was, he said, no ambiguity and certainly no scope so long as the Human Rights Act was not in force for the high position adopted by Mr O'Neill on the issue of "impossibility" and "compatibility".
  18. There is no doubt that in seeking to resolve the matter before us, the issue is initially complicated by the imminent arrival of the Human Rights Act into the United Kingdom law in the particular context of employment. It is not necessarily clear to us that after the operative date it applies only to discriminatory acts committed after that date and not also to proceedings pending in relation to discriminatory acts before that date, which was Mr O'Neill's contention. It derives some support from the fact that in the relevant provision which is section 7, reference is made to "any legal proceedings", in section 7(1)(b). It is also somewhat ironic that if we delayed issuing this judgment until after 2 October 2000, since section 6 applies to a court or tribunal, it would be unlawful for us after that date to act in a way incompatible with the Convention but that seems to us to beg the question before us.
  19. There is also a real issue to be determined in due course as to what interpretation should be put on the provisions of section 3(1) which states:-
  20. "So far as it is possible to do so primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention Rights."

  21. It can be seen at once that this may well be approaching the position adopted by Mr O'Neill before us, against the background of impossibility, thus requiring the courts to take a view of Convention Rights against United Kingdom legislation similar to that to which they are already enjoined to do in relation to Community legislation by the House of Lords in Webb v EMO Air Cargo (UK) Ltd [1993] IRLR 27, per Lord Keith at page 32, (see Lord Hope in Kebeline supra). However that question only arises when the Act has come into force.
  22. However, these observations are not to be treated as our views, relevant to the resolution of this matter, having regard to the fact that we consider we can resolve this matter against the current common law as focussed by Lord President Hope in T, Petitioner, where he disassociates himself from the passages quoted by him, as observations of both Lord Ross and Lord Diplock, that the Convention is currently irrelevant even in a context of ambiguity. The opinion of his Lordship is to the effect that if ambiguity is established in as much that one of the possible interpretations is consistent with the Convention and the other not, the former interpretation should be favoured. Furthermore he goes on in the next passage to confirm the legislative presumption applying to United Kingdom law in relation to the Convention to which we note subsequent reference. Support for this could be found also from the Lord Justice General in Brown v Stott [2000] SLT 379, albeit that his Lordship was there dealing with a situation where the Convention was already incorporated into the domestic law and, therefore, that case should not necessarily be read as providing much support for the ambiguity position.
  23. In T, Petitioner, Lord President Hope failed to find any ambiguity but quite clearly states that if he had done so in the relevant context he would have given effect to the provision favouring the Convention Right.
  24. He states as follows:-
  25. "The amicus curiae suggested that, if we were unclear as to whether the provisions of the 1978 Act were intended to allow applications such as that made by the petitioner, we should consider whether regard should be had to the European Convention on Human Rights as an aid to the construction of the Act. As he pointed out, Lord Ross in Kaur v Lord Advocate, 1981 SLT at p 330 said that, as the Convention was not part of the municipal law of the United Kingdom, the court was not, so far as Scotland was concerned, entitled to have regard to the Convention either as an aid to construction or otherwise. That opinion was expressed after a careful review of the English authorities. These consisted largely of various dicta in the Court of Appeal, where the judges stated that, if there was any ambiguity in the United Kingdom statute, the court may look at and have regard to the Convention as an aid to construction. But Lord Ross said that he shared the view of Diplock LJ, as he then was, that the Convention was irrelevant in legal proceedings unless and until its provisions had been incorporated or given effect to in legislation. For my part, I think that, read as a whole and in context, Diplock LJ's remarks in Salomon v Commissioners of Customs and Excise [1967] 2 QB at p 143, were not intended to indicate that the Convention could not be looked at in order to resolve an ambiguity. What he was saying was that the terms of the statute could not be departed from if they were clear and unambiguous. However that may be, Lord Ross's opinion, although widely quoted in the text books as still representing the law of Scotland on this matter, has been looking increasingly outdated in the light of subsequent developments, and in my opinion, with respect, it is time that it was expressly departed from.
    It is now clearly established as part of the law of England and Wales, as a result of decisions in the House of Lords, that in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, the courts will presume that Parliament intended to legislate in conformity with the Convention, not is conflict with it: see R v Home Secretary, ex p Brind per Lord Bridge of Harwich at [1991] 1 AC, pp 747H-748A. Similar views with regard to the relevance of the Convention were expressed by Lord Reid in R v Miah [1974] 1 WLR at p 694B-E, and by Lord Keith of Kinkel in Derbyshire County Council v Times Newspapers Ltd [1993] AC at pp 550D-551G. In Anderson v HM Advocate the opportunity was taken at 1996 SCCR, p 121; 1996 SLT, p 158, to refer to the Convention and to Lord Bridge's observations. But an opinion was reserved as to whether these observations were part of the law of Scotland also, as the court was not concerned with a matter of statutory interpretation in that case. It is however now an integral part of the general principles of European Community law that fundamental human rights must be protected, and that one of the sources to which regard may be made for an expression of these rights is international treaties for the protection of human rights on which member states have collaborated or of which they are signatories: see Stair Memorial Encyclopaedia, Vol 10, "European Community Law", para 95. I consider that the drawing of a distinction between the law of Scotland and that of the rest of the United Kingdom on this matter can no longer be justified. In my opinion the courts in Scotland should apply the same presumption as that described by Lord Bridge, namely that, when legislation is found to be ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, Parliament is to be presumed to have legislated in conformity with the Convention, not in conflict with it."
  26. This seems to us to accord with common sense against a background of the general presumption that United Kingdom domestic law has been presumed to conform to the Convention ever since the United Kingdom government became a signatory to the Convention and obviously before such time as the Human Rights Act enacted the Convention into the United Kingdom domestic law, (T, Petitioner supra). The position seems to us to be compatible with the now accepted doctrine of ambiguity in relation to the construction of Parliamentary statutes where reference can be made to Parliamentary debates, background papers and the like to resolve the ambiguity by ascertaining the intention of Parliament. We consider the authorities entitle us to conclude at this point in time that if United Kingdom domestic legislation is ambiguous in the context of a potential Convention Right, the Convention may rule as between the two or more interpretations.
  27. At the end of the day, Mr Truscott did not appear seriously to dispute this basic proposition, taking his stance on a determined position that there was no ambiguity in the interpretation of the word "sex" both naturally and as focussed by the Courts in the relevant decisions that he had referred to, not least Smith v Gardner Merchant and the recent decision of Pearce.
  28. We do not consider that the two recent decisions of the European Court of Human Rights and, in particular, the Portuguese case of Salgueiro, have created an ambiguity but rather that they have focussed one in the relevant word "sex" found both in the SDA and Article 14 of the Convention. Intrinsically, the Oxford University Dictionary (1989 edition) inter alia includes a definition under the word "sex" of "a third sex" which undoubtedly refers to homosexuality in both men and women. Since the word also can obviously mean "gender" as interpreted by the English Courts an obvious ambiguity arises on the face of the record. Extrinsically, the European Court of Human Rights has now expressly included sexual orientation in the definition of the word "sex", as found in their Convention, we consider there is the classic example of a statutory ambiguity before us from two competent authorities and we therefore consider we have a choice of interpretation.
  29. If this analysis is correct we have thereafter no hesitation in favouring the wider interpretation. The only case presented to us since the obvious change of circumstances created by the two recent European Court of Human Rights cases, is that of Pearce which seems to have concentrated upon the existing state of the English law and certainly there is no indication that the Convention cases were laid before the Tribunal. In any event the substance of that case was dealing with comparators and applied Smith v Gardner Merchant which in its terms is very clear.
  30. In reaching our conclusion we have not been greatly influenced by the case of Grant v South-West Trains [1998] ICR 449, since the European Court of Justice was then considering the issue of equal pay and not concerned directly with the definition of the word "sex".
  31. In our opinion accordingly on the present state of the law, stated at the date of the dissemination of this judgment, the word "sex" in the SDA should be interpreted to include, "on grounds of sexual orientation". In reaching this conclusion, we admit no criticism of the Tribunal below who were directed to the essential issue of the reference against what appeared to be settled law. It is simply, that in our opinion, by the time the matter has reached us, matters have moved on.
  32. Mr O'Neill had a supplementary position, that in any event, if the issue involved a comparator, the comparator should not be on a gender basis but on a sexual orientation basis. This position arose precisely in the same way as the main argument has done, inasmuch that it depended upon whether sexual orientation could be contemplated within the scope of the 1975 Act. Since we have determined this point, we would also agree with Mr O'Neill's position that if comparators are relevant, the issue is not as between a male and a female simpliciter but between a male or female homosexual and a female or male heterosexual in order to determine not whether one homosexual is being treated less favourably than another but whether homosexuals of either gender in the context are being treated less favourably than heterosexuals of the opposite gender which is the true comparator in the context of sexual orientation as a consequence our definition of the word "sex".
  33. That leaves us to deal with the issue of sexual harassment. This can be dealt with comparatively shortly since although there are some factual disagreements, the essential complaint as set out by the Tribunal was the way in which the interview was conducted with Wing Commander Leeds. The Tribunal's essential decision is as follows:-
  34. "The applicant's complaint goes beyond the suggestion that Wing Commander Leeds gained his own sexual gratification from the interview. He complains of the intrusive nature of the questioning. He complains about being asked about those with whom he has had homosexual relations. He complains about being asked about his heterosexual activities. He complains about being asked about the history of his sexuality including questions about his schooldays. He complains about the way in which he was asked for details of his sexual activities. He complains about being asked repeatedly to name other service people with whom he has had sexual relations. He complains about being asked about the extent of his family's knowledge of his sexuality. All of this the applicant maintains amounted to sexual harassment. Whether or not Wing Commander Leeds' conduct in these respects should properly be classified as sexual harassment there were elements of his conduct which in Smith and Grady were found by the European Court of Human Rights to be violations of rights under Article 8 of the Convention. If there were violations of the applicant's Convention rights that is not something with which this Tribunal has jurisdiction to deal.
    Since for the reasons given above discrimination on the ground of sexual orientation does not constitute sexual discrimination for the purposes of either the SDA or the Directive the applicant's complaint of sexual harassment can only succeed if he satisfies the Tribunal in terms of Section 1(1) (a) of the SDA that on the ground of his sex he has been treated less favourably than a woman would have been treated. Section 5(3) of the SDA provides that a comparison of the cases of persons of different sex under Section 1(1) has to be such that "the relevant circumstances" in both cases are the same or not materially different. Mr O'Neill contends that the appropriate comparator in a case like the present is a heterosexual woman. It is not appropriate to consider how a lesbian might be treated in comparison to a gay man because this involves changing the gender not only of the subject under consideration but also the gender of the object of his or her affection. That argument was considered by the Court of Appeal in Smith v Gardner Merchant Ltd which held that the appropriate comparator in such a case must be a female homosexual. In that case homosexuality was held to be "the relevant circumstance" which had to be the same for the purpose of the comparative analysis required by Section 5(3) of the SDA. The Tribunal is bound by that decision.
    The Tribunal also considered that in looking at "the relevant circumstances" in this case for the purposes of Section 5(3) it would be necessary to have regard to the context of the interview which Wing Commander Leeds conducted . It was a security vetting interview. It was a second interview specifically held for the purpose, rightly or wrongly, of confirming the applicant's sexual orientation and seeking to ascertain the extent to which this had involved other service personnel. The Tribunal had no doubt that if he had been faced with a homosexual female officer who had undergone a similar interview to that which the applicant had with Mr Warner Wing Commander Leeds would have conducted the interview on very much the same lines. To do so was what he perceived to be his responsibility as a vetting officer. On the basis of that conclusion the applicant's complaint of sexual harassment also falls to be dismissed."

  35. It will be immediately apparent that the Tribunal approached the matter quite understandably in regard to the position it had already reached on the main issue, that what was required was harassment as between a male and female comparison on a gender basis, in the sense that if there had to be both that distinction and orientation, the proper comparator was therefore a female homosexual.
  36. Generally for the reasons we already discussed, we do not consider that this is correct once it is appropriate to interpret the word "sex" in the SDA as capable of including sexual orientation. As soon as that is established, comparisons with other homosexuals which in the male context has to be female are immaterial. The distinction must be between how the employer treated a homosexual, be it male or female on the one hand and a heterosexual, be it female or male on the other. Thus in the case of a male, one is looking for a female heterosexual comparator. This issue did not even factually arise in the present case. Nor in our opinion, is it anything to the point that the interviewer would have treated a lesbian female in exactly the same way as a homosexual male.
  37. We are left with the slightly disturbing point as to the extent to which the Tribunal have concerns about the applicant's credibility when it comes to his recollection of the nature of the interview but given the case of Reed and Bull Information Systems Ltd v Stedman [1999] IRLR 299, referred to by the Tribunal, we do not consider any further investigation is relevant on this point, not least because given the Tribunal's findings in fact as to the nature of the interview, the test laid down in Porcelli v Strathclyde Regional Council [1986] ICR 564 must apply which confirms that if the nature of the conduct is both sexually related and blatantly unacceptable there is no need for a comparator. Res ipsa loquitur On the facts generally found proved by the Tribunal, this is at least a possible interpretation.
  38. All this confirms to our mind that the Tribunal misdirected itself by not applying the wider definition which would have admitted the claim for sexual harassment on grounds of sexual orientation. Again we emphasise no criticism of the Tribunal below for the reasons we have already given.
  39. In these circumstances this appeal is allowed. Since the issues raised are questions of law we feel able to quash the decision simpliciter, find that by reason of his dismissal from the Armed Forces on grounds of his sexual orientation, the appellant was discriminated against in terms of the SDA and that he is entitled to compensation in respect of that legislation. We also find on the facts generally found proved by the Tribunal, that he was subjected to sexual harassment and is also entitled to compensation in that respect.
  40. In these circumstances the case is remitted back to the Employment Tribunal to proceed as accords in relation to the issues of compensation.

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