Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the sexual orientation of the first claimant. Discrimination for sexual orientation does not come within the rules against sex discrimination. Mr MacDonald was dismissed because he was homosexual. A female homosexual would also have been dismissed. The appeals were dismissed. ‘These two appeals demonstrate the importance, in my opinion, when dealing with complaints under the 1975 Act and the other anti-discrimination Acts, of keeping in mind that they are intended to combat discrimination. They are anti-discrimination statutes. Absent discrimination, objectionable conduct by employers must be countered by other means than complaints under these Acts.’
Judges:
Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Scott of Foscote, Lord Rodger of Earlsferry
Citations:
[2003] UKHL 34, Times 20-Jun-2003, [2003] ICR 867, Gazette 17-Jul-2003
Links:
Statutes:
Sex Discrimination Act 1975, Council Directive 2000/78/EC of 27 November 2000
Jurisdiction:
Scotland
Citing:
Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Disapproved – Strathclyde Regional Council v Porcelli SCS 1986
Mrs Porcelli was employed as a science laboratory technician at a school in Glasgow. Two technicians in the same department pursued a vindictive campaign against her for the deliberate purpose of making her apply for a transfer to another school. . .
Cited – Smyth v Croft Inns Ltd 1996
A barman in a public house with Protestant customers in a ‘loyalist’ area of Belfast was constructively dismissed because he was a Roman Catholic.
Held: That was discrimination ‘on the ground of religious belief’ within the section. The . .
Disapproved – British Telecommunications Plc v Williams EAT 3-Jun-1997
Sexual harassment was defined as ‘unwanted conduct of a sexual nature, or other conduct based upon sex affecting dignity at work’. It would be no defence to a complaint of sexual harassment that a person of the opposite sex would have been similarly . .
Overruled – Burton and Another v De Vere Hotels EAT 3-Oct-1996
Two black waitresses, clearing tables in the banqueting hall of a hotel, were made the butt of racist and sexist jibes by a guest speaker entertaining the assembled all-male company at a private dinner party.
Held: The employer of the . .
Cited – S S Hussain v HM Prison Service EAT 1-Mar-2002
EAT Race Discrimination – Direct . .
Disapproved – Go Kidz Go Ltd v Bourdouane EAT 10-Sep-1996
. .
Cited – Strathclyde Regional Council v Zafar; Zafar v Glasgow City Council HL 16-Oct-1997
The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found . .
Cited – Lustig-Prean and Beckett v The United Kingdom ECHR 27-Sep-1999
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; No separate issue under Art. 14+8; Just satisfaction reserved
Hudoc Judgment (Just satisfaction) . .
Cited – Smith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – Applin v Race Relations Board HL 27-Mar-1974
A couple cared for children without fee who were referred to them by a local authority. The children they cared for included coloured children. Two individuals sought to prevent the couple caring for coloured children. The question for the House of . .
Cited – Regina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .
Cited – Webb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
Cited – Grant v South West Trains Ltd ECJ 17-Feb-1998
A company’s ban on the provision of travel perks to same sex partners of employees did not constitute breach of European sex discrimination law. An employer’s policy was not necessarily to be incorporated into the contract of employment. The court . .
Cited – Weathersfield Ltd (T/a Van and Truck Rentals) v Sargent CA 10-Dec-1998
The employer, a vehicle hire operator, explained to the Claimant employee following her appointment as a receptionist their policy that if she received an enquiry from any coloured or Asians, judging by their voices, she was to tell them that there . .
See Also – Pearce v Mayfield Secondary School EAT 26-Oct-1998
‘This is an appeal by Ms Shirley Pearce [‘the applicant’] against a decision of a Chairman (Mr R H Trickey) sitting alone at the Southampton Industrial Tribunal on 4th June 1997, dismissing her complaint of sex discrimination brought against her . .
See Also – Pearce v Mayfield School EAT 7-Oct-1999
Directions appeal. . .
At EAT – S Pearce v The Governing Body of Mayfield Secondary School EAT 7-Apr-2000
Abuse which was directed at a homosexual teacher by students, where the abuse was directed at that homosexuality, but was gender specific rather than non-gender specific, (‘dyke’ and lesbian’ rather than ‘gay’) was not itself sex discrimination. The . .
Appeal from – Pearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
Cited by:
Cited – The Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
Cited – Chief Constable of Kent County Constabulary v Baskerville CA 3-Sep-2003
The claimant sought damages for sex discrimination by fellow police officers in an action against the Chief Constable. The Chief Constable said he was liable for the unlawful acts of fellow officers.
Held: Anything done by an employee was done . .
Cited – Kettle Produce Ltd v Ward EAT 8-Nov-2006
EAT Sex discrimination – Comparison
When a male manager entered the women’s toilets and shouted at a woman on her break, the correct question which should be asked is this: would the Respondent, in the form . .
Cited – Conteh v Parking Partners Ltd EAT 17-Dec-2010
EAT HARASSMENT – Conduct
Where an employee worked in an environment in which her dignity was violated, or which became intimidatory, hostile, degrading, humiliating or offensive as a result of actions of . .
Lists of cited by and citing cases may be incomplete.
Discrimination
Updated: 16 June 2022; Ref: scu.183696