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 school were no responsible for it. The 1998 Act had come into effect.
Held: The actions were discriminatory, but the 1975 Act operated against discrimination on the grounds of sex, not sexual orientation. The argument that the abuse was gender specific was insufficient alone to make is discrimination for sex: ‘The crucial distinction between the sexual harassment cases and others is that the disliked woman is being subjected to abuse of a sexual nature whereas an equally disliked man would be subject to a different sort of abuse. This is a difference of treatment based on sex: and most people would have little difficulty in deciding that abuse of a sexual nature was ‘less favourable’ than other types of abuse. But if the true comparator is a male homosexual, and a male homosexual would have been subject to the same sort of sexual harassment, albeit using different words, then it cannot be said that this is less favourable treatment on grounds of sex.’
The Court went on to examine the effect of the 1998 Act.


Henry LJ, Judge LJ, Hale LJ


Gazette 27-Sep-2001, Times 09-Oct-2001, [2001] EWCA Civ 1347, [2001] Emp LR 1112, [2002] ICR 198, [2002] ELR 16, [2001] IRLR 669




Sex Discrimination Act 1975, Human Rights Act 1998, European Convention on Human Rights 8


England and Wales


See AlsoPearce v Mayfield School EAT 7-Oct-1999
Directions appeal. . .
Appeal fromS 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 . .
CitedPorcelli v Strathclyde Regional Council EAT 1985
A woman school technician was subjected to a campaign of sexual harassment by two fellow male non-managerial technicians. She sought a transfer.
Held: The real question was whether the sexual harassment was to the detriment of the applicant . .
CitedBritish 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 . .
BindingSmith v Gardner Merchant Ltd CA 14-Jul-1998
A male homosexual barman complained of offensive remarks about his sexuality from a female colleague.
Held: When considering whether a gay man has been discriminated against on the grounds of his sex, by means of abuse in work-place, the . .
CitedRegina v Ministry of Defence ex parte Smith; ex parte Grady CA 3-Nov-1995
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to . .
CitedGrant 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 . .
CitedDudgeon v The United Kingdom ECHR 22-Oct-1981
ECHR (Plenary Court) Legislation in Northern Ireland that criminalised homosexual behaviour which was lawful in the rest of the UK.
Held: There was a violation of article 8, but it was not necessary to . .
CitedSmith 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 . .
CitedRegina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
CitedMarckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
CitedRegina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
CitedIn Re F (Adult: Court’s Jurisdiction) CA 25-Jul-2000
The local authority sought a declaration as to its rights to control the daily activities of an eighteen year old, who was incapable of managing her own affairs but was not subject to mental health legislation.
Held: There remained an inherent . .
CitedSalgueiro Da Silva Mouta v Portugal ECHR 21-Dec-1999
There was a difference in treatment between the applicant and a comparator based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14. The list set out in this provision is of an indicative nature and is not . .
CitedNational Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 9-Oct-1998
(South African Constitutional Court) Application was made to have declared constitutionally invalid laws against homosexuality. Sachs J held: ‘ There is no good reason why the concept of privacy should, as was suggested, be restricted simply to . .
CitedMarckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
CitedX and Y v The Netherlands ECHR 26-Mar-1985
A parent complained to the police about a sexual assault on his daughter a mentally defective girl of 16. The prosecutor’s office decided not to prosecute provided the accused did not repeat the offence. X appealed against the decision and requested . .
See AlsoPearce 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 . .

Cited by:

Appeal fromMacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
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 . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Human Rights, Employment

Updated: 30 January 2022; Ref: scu.201279