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We have just reported the Employment Appeal Tribunal judgment that the Sex Discrimination Act does not cover issues of sexuality (Pearce v The Governing Body of Mayfield Secondary School, LELR 50).
Now the Scottish Employment Appeal Tribunal has reached the opposite conclusion. It is unlawful to discriminate and harass a gay employee - contrary to the Sex Discrimination Act 1975. The Court reasoned that the word sex in the legislation encompassed sexuality and therefore protected lesbians and gays. If there was a need for a comparator, then the comparison was with one of the opposite sexuality and gender.
In Mr MacDonald's case the EAT was fully aware of the chequered legal history of sexuality discrimination. They noted the Court of Appeal case of Smith v Gardner Merchant (1998 IRLR 510, LELR 26) which rejected the idea of including sexuality discrimination within the definition of gender discrimination. The Court only accepted that there could be sex discrimination claim if a "homosexual" of one sex compared themselves with a "homosexual" of the opposite sex. The Pearce case followed the reasoning in Smith v Gardner Merchant in rejecting Ms Pearce's claim.
The EAT in MacDonald got around Smith v Gardner Merchant by relying on European developments which occurred after Smith v Gardner Merchant was decided. including the ruling of the European Court of Human Rights that the discharge of lesbian and gay personnel from the armed forces was unlawful (Lustig-Prean ([1999] IRLR 734, LELR 40). They also made reference to an unreported case Salguerio which said that the word "sex" in Article 14 of the European Convention on Human Rights prohibits sexuality discrimination. Lastly but not least the Court was most insistent on the need to apply European law in their interpretation of UK law both on principle or under the Human Rights Act 1988.
As there was statutory ambiguity in the word "sex" the EAT held that they should interpret it to include sexuality. They could both apply European law and depart from the Court of Appeal in Smith v Gardner Merchant.
Confusingly that does not necessarily mean that the law has changed, just that both arguments are now supported by legal authority. Employers will rely on Smith v Gardner Merchant and Applicants on the Human Rights Act and the MacDonald case.
So where there are instances of sexuality discrimination including dismissal, claims can now be argued in the Tribunal with some chance of success.
The European Framework Directive, passed by the Council of Ministers on the October 17 will make sexuality discrimination unlawful. The wide prohibition of the directive will include indirect discrimination as well as direct. The Government only has three years to implement the law as far as lesbian and gay employees are concerned, so by then at the latest, the matter will be beyond doubt.