Smith 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 proper comparator to test for discrimination is how a gay woman would have been treated. The fact that the harassment is gender specific in form is not of itself conclusive evidence that the reason for the harassment is gender based: ‘on the ground of her sex’. It will certainly point in that direction. But this does not dispense with the need for the tribunal of fact to be satisfied that the reason why the victim was being harassed was her sex.


Ward LJ


Times 23-Jul-1998, Gazette 26-Aug-1998, [1998] EWCA Civ 1207, [1999] ICR 134, [1998] IRLR 510, [1998] 3 All ER 852




Sex Discrimination Act 1975


England and Wales


Appeal FromSmith v Gardner Merchant Ltd EAT 19-Oct-1995
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Cited by:

BindingPearce 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 . .
Lists of cited by and citing cases may be incomplete.


Updated: 20 November 2022; Ref: scu.144686