|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Gibson v British Gas Energy Centres Ltd  UKEAT 668_98_1902 (19 February 2001)
Cite as:  UKEAT 668_98_1902
[New search] [View without highlighting] [Printable RTF version] [Help]
|At the Tribunal|
|On 1 November 2000|
THE HONOURABLE MR JUSTICE CHARLES
MR B GIBBS
MRS R A VICKERS
Transcript of Proceedings
|For the Appellant||MR T KIBLING
Mr N J Battersby
Messrs Whitehead Woodward & Co
37 Bloom Street
Manchester M1 3LY
|For the Respondent||MR P GOULDING QC
MISS G WHITE
Ms C Adams
British Gas Plc
Legal Services Dept
30 The Causeway
MR JUSTICE CHARLES:
"The applicant's claim that he was subjected to sex discrimination (on the ground of his sexual orientation) by the respondent contrary to the provisions of Section 6 of the Sex Discrimination Act 1975 and in breach of European Law is dismissed for want of jurisdiction."
"Sexual Orientation Discrimination, Section 6 of the Sex Discrimination Act 1975 and EEC Equal Treatment Directive 76/207."
By box 11 he referred to an attached statement, paragraphs 5, 6 and 7 of which are in the following terms:
"5. I believe that I have been discriminated against on the grounds of my sexual orientation, in contravention of Section 6 of the Sex Discrimination Act 1975 and the EEC Equal Treatment Directive 76/207, by my dismissal on 29 October 1997 on the grounds that I was incapable of carrying out my job. I do not believe that a heterosexual man, or a woman, would have been dismissed in similar circumstances.
6. I also believe that I have been subjected to other detriments because of dismissal on the grounds of my sexuality. I give the following examples:
(i) At the end of 1996 I took a week off work. My managers, Rebecca Hubbard and Ian Brady informed all of my colleagues who worked in the same warehouse as me that I was gay. Although I had given my permission for them to do so, I did this in response to their advice and prompting. I believe that similar advice would not have been given to a heterosexual man, or a woman, undergoing a personal crisis, to the effect that he or she should inform all of his or her colleagues of its cause.
(ii) My managers, Rebecca Hubbard, Ian Brady and Bernard Murphy, treated me differently than they would have treated a heterosexual man in similar circumstances , when they refused to let me return to work in June 1997 after I had been sent home, having been signed off sick, on 30 April. My contract entitled me to 2 weeks full sick pay, and then I was receiving Statutory Sick Pay. My GP said that I was fit to return to work, but a manager, Gary Tomlinson, refused to accept this. I was allowed to receive full pay, backdated to April 30, but was not allowed to work. I do not believe that a heterosexual man, or a woman, who was suffering from stress or depression as a result of a personal crisis would have been met with such treatment.
(iii) The way in which four medical reports about my capability to do my job were interpreted during my dismissal, when in fact none of them gave the opinion that I was incapable of carrying out my job. I believe that the reports of a heterosexual man, or a woman in the same circumstances, would have been interpreted differently.
These four reports were from:
[The authors of the reports were then identified].
7. I believe that an Industrial Tribunal [now an Employment Tribunal] will have jurisdiction to hear claims of Sexual Orientation Discrimination under the Sex Discrimination Act, because of the referrals to the European Court of Justice of the Grant, and Perkins, cases, and should allow such claims to be lodged pending their outcomes. Also, or in the alternative, I believe that I can rely directly on the European Equal Treatment Directive since British Gas is an emanation of the State."
"1 The Employment Tribunal reached the conclusion that his complaint, which is that he was treated differentially on the grounds of his being a homosexual, did not fall within the relevant provisions of the Sex Discrimination Act or the Equal Treatment Directive, because on the basis of decisions of the Employment Appeal Tribunal in Smith v Gardner Merchant Ltd and of the European Court in Grant v South West Trains Ltd, there were, as they saw it, binding conclusions of law that the question of sexual orientation was not covered in those provisions, which related to discrimination on grounds of sex or gender.
2 That conclusion is sought to be appealed by the Notice of Appeal dated 27 April 1998, whose validity is being effectively tested before us today.
3 Since the decision of the Employment Tribunal the law has moved on somewhat. It has moved on in the following ways.
4 First of all, Smith v Gardner Merchant Ltd has come to the Court of Appeal, reported now in  IRLR p510 and the conclusion, to which I earlier referred, of the Employment Tribunal, based upon the decision of the Employment Appeal Tribunal in Smith v Gardner Merchant Ltd was upheld, namely that, as was put in the headnote of that case, the Employment Tribunal and the EAT had not erred in finding that discrimination on grounds of sexual orientation is not discrimination on the grounds of sex within the meaning of the Sex Discrimination Act. A person's sexual orientation is not an aspect of his or her sex.
5 Secondly, the case of Perkins, originally reported in the High Court in 1997 IRLR p297, which at the stage, at any rate, of the Notice of Appeal, was still in the position at which it had been referred to the European Court but not yet decided, has now been decided.
6 The point about Perkins was that, in the Notice of Appeal before us, it was sought to be asserted that in the European Court a different view would, or might, be taken of the case of Perkins, which was based upon service in the Armed Forces, to that which had been taken by that Court in Grant v South West Trains Ltd, which had related to the availability of free or concessionary travel for homosexual partners.
7 In the event, what has occurred is that not only has the European Court decided in Grant v South-West Trains Ltd, that discrimination on grounds of sexual orientation does not fall within the provisions of Article 119 of the Treaty of Rome, on the basis of an allegation of unequal pay, but that subsequently the European Court in the case of Perkins has now decided that the same applies in the context of equal treatment within the Equal Treatment Directive.
8 The third development is that in the case of Smith and Grady v United Kingdom  IRLR 734, the European Court of Human Rights held that Article 8 of the European Convention on Human Rights was violated by the investigation conducted into homosexuality of those in the Armed Forces and their discharge from the Armed Forces.
9 Mr Kibling, who has argued the matter before us today, has accepted in those circumstances that the avenues presented by the argument as previously put that, as a matter of law, the Employment Tribunal erred in failing to find that sexual orientation was a basis for discrimination, is no longer available, either in English law proper, because the Court of Appeal has foreclosed that avenue, or, in the European Court because the decision in Grant v Perkins has foreclosed that avenue. He, however, has submitted that his appeal still had a live point in it on the following two bases.
10 First, when dismissing the main point in Smith v Gardner Merchant Ltd, the Court of Appeal left open an alternative argument which, as I understand it, they remitted for further consideration, namely whether, even within the narrow interpretation of the Sex Discrimination Act it could be said to be available, as an argument on the facts of that case, that a homosexual male was, or had been, treated differently from a homosexual female in the same position.
11 The facts in the present case have never been found, because the Employment Tribunal decided the matter, as a matter of law, without the facts being heard and this argument was never put before them. We have no idea whether any such point could be run in this case.
12 It is entirely possible that at a full hearing of this appeal an Employment Appeal Tribunal might come to the conclusion that, notwithstanding the nice (used in its old fashioned meaning) argument, it was either not available or hopeless in relation to this case, or that because it was not argued below it should not now be permitted to be argued, or remitted, so to be argued in this case. But nevertheless, it seems to us, that because of the possible availability of this line of argument, which was found to be a live one by Smith v Gardner Merchant Ltd CA and has never been ruled out in this case, putting it at its lowest, that this appeal should proceed on that ground.
13 The second argument put forward by Mr Kibling was that he could seek support from the decision of Smith and Grady and the decision of the European Court of Human Rights, by way of submitting in this case that the Court should apply by osmosis the principles of the Human Rights Act, which will not strictly apply, certainly do not at the moment apply, but which may have come into force by the time the Employment Tribunal comes to hear this case, if leave were granted by the Employment Appeal Tribunal.
14 We say nothing at this stage about that point. First, because it may be that the Employment Appeal Tribunal will not give leave; secondly, because they may take the view that the Human Rights Act has no direct, or indirect, relevance to this case, in which case, of course, it would be sought to be asserted that the Sex Discrimination Act itself was ineffective to assist the Appellant in the light of the Court of Appeal decision; and thirdly, because it may be that this Employment Tribunal, even if leave were granted, would be deciding the matter before October, in any event - I have no idea about what timetable would evolve.
15 In those circumstances the leave that we conclude it right to give on this preliminary hearing is limited to the first point, although clearly nothing can, or should, shut out Mr Kibling from referring to his second argument on the full hearing of this appeal, which we now permit."
(a) to determine whether or not that point was available or hopeless in relation to this case, or
(b) to determine that because that point was not argued below it should not now be permitted to be argued, or remitted so that it could be argued in this case.
"6.1 The Tribunal erred in being satisfied that the Appellant's claim could not be made under the Sex Discrimination Act 1975. The employment tribunal's task under section 1(1)(a), read together with section 5(3), is to ascertain (a) what, as a matter of fact, was the treatment received by the employee; (b) it failed to ask itself whether the Appellant had been treated less favourably than the woman with whom the Appellant fell to be compared (a lesbian), and (c) would he have been so treated but for his sex, see Smith v Gardner Merchant Ltd CA  IRLR 510.
6.2 Further and in the alternative, having regard to the provisions of the European Convention on Human Rights, ('the Convention') and the Human Rights Act 1998, the Employment Tribunal were bound to interpret the provision of the Sex Discrimination Act consistently with the United Kingdom's international obligations. The Employment Tribunal should have treated an act of discrimination on grounds of sexual orientation as an unlawful act, having regard to Article 8 of the Convention. The Appellant will rely on the decision of the European Court of Human Rights in Smith and Grady v United Kingdom ECHR  IRLR 734 and Redmond-Bate v DPP High Court (case no CO/188/99).
6.3 Further and in the alternative, the Employment Tribunal, determined as a preliminary hearing the question of jurisdiction without hearing any evidence in a case where the dispute of evidence needed to be resolved prior to a decision being reached on the preliminary issue concerning its jurisdiction, see Smith v Gardner Merchant Ltd CA  IRLR 510 @ para. 94 and 95."
(a) whether, having regard to paragraph 12 of the judgment of Burton J, the Appellant should be permitted to argue the points raised in paragraphs 6.1 and 6.3 of the draft amended Notice of Appeal, and
(b) whether the Appellant should be given leave to amend, or otherwise be permitted, to argue the ground contained in paragraph 6.2 of the amended Notice of Appeal.
Comparison of the Applicant with a Lesbian: Ground 6.1
(a) the Employment Tribunal should of its own motion have considered that point, or
(b) he should be allowed to raise that point at this stage as a new point.
(a) it would involve new evidence and questioning of the relevant decision makers,
(b) it therefore cannot be advanced before us and to enable it to be advanced we would have to remit the case so that the Employment Tribunal could hear evidence as to events that took place in and before June 1997,
(c) the Appellant's main case was that he had been less favourably treated because a heterosexual man would have been allowed to return, whether this is right is a matter of speculation but it demonstrates that (i) it was the reason that occurred to, and was advanced by, the Appellant as one that he considered he could establish as a matter of fact, (ii) it was his main case and concern, and (iii) a case based on a comparison with a lesbian was an alternative that did not occur to, or was not advanced by, the Appellant as one that he considered he could establish as a matter of fact and law, and
(d) there are no compelling or exceptional circumstances that, having regard to the competing interests of both parties, warrant us allowing the Appellant to advance this argument at this late stage.
Ground 6.2 in the draft amended Notice of Appeal
(a) the act, or acts, that the Appellant wishes to argue are in breach of his Convention Rights took place before, or at the time of, the hearing before the Employment Tribunal and therefore before the coming into force of s. 7(1)(b), and
(b) this has the consequence that the part of s. 22(4) that provides for retrospective effect does not apply because the proceedings were not brought by, or at the instigation of, a public authority.
In this context we note that Lord Hobhouse in Reg v Director of Public Prosecutions ex parte Kebilene  3 WLR 972 at 1008G says that neither section 6 or section 7 of the Human Rights Act 1998 is retrospective.
(i) the above conclusion is wrong,
(ii) in determining whether the act, or acts, relied on were unlawful and whether the Employment Tribunal erred in law we should apply section 3 and/or Convention Rights, and therefore
(iii) the effect and application of the Human Rights Act 1998 is equivalent to a decision of the House of Lords that is declaratory of what the law has always been (albeit the Court if Appeal have earlier held it to be different)
in our judgment we would then have a discretion to determine whether or not the Appellant should be allowed to amend his notice of appeal to raise the new points he now wishes to argue and which for obvious reasons were not raised before the Employment Tribunal (see for example Setiya v East Yorkshire Health Authority  IRLR 348, although here a notice of appeal not raising the new point was served in time and there it was not, and the Glennie and Jones cases referred to in paragraph 18 above, and the notes to the old RSC Order 59 rules 7 and 10) and in the exercise thereof we would refuse to allow him to do so.