EMPLOYMENT LAW SEXUAL ORIENTATION DISCRIMINATION ON THE GROUNDS OF SEXUAL ORIENTATION INTRODUCTION: Currently there is no employment legislation in the UK covering discrimination on the grounds of sexual orientation. With this in mind this essay will discuss developments, which have occurred, and the effectiveness of these changes, the essay will also discuss future developments, which are anticipated, and problems, which may arise from these changes. It is clear from reading the Sex Discrimination Act that the intention of legislation was to prevent discrimination between sexes, i.e. men and women. However there is nothing in the Act, which would prevent discrimination on the grounds of sexual orientation, i. e., homosexuality, lesbianism or gender reassignment.

But the law does not remain unchanged, and has to deal with problems that arise, usually in a manner consistent with social policy. The Secretary of State vs. MacDonald (2000 IRLR 748; EAT) and Pearce vs. the governing body of Mayfield School (2000 ICR 920; EAT) cases highlight the need for the EU anti-discrimination framework directive to cover sexual orientation discrimination, as I will prove. The MacDonald case is about a gay man who was dismissed from the RAF. An Employment Appeals Tribunal (EAT) in Scotland ruled that Mr MacDonald had been discriminated against under the Sex Discrimination Act (1975) because he was dismissed as a result of his sexuality. This was a very important decision because it changes the interpretation of the Sex Discrimination Act. If the decision stands it will be binding on all Employment Tribunals in Great Britain.

In the above case, MacDonald was "compulsorily resigned" in accordance with the Royal Air Force Regulations, which precluded the employment of homosexual men and women. He claimed sex discrimination and harassment under the SDA and the European equal treatment directive, maintaining that both covered discrimination on the grounds of sexual orientation. An employment tribunal found that sexual orientation was not covered by either UK legislation or EU law and dismissed his claim. MacDonald then said that his situation should be compared not with a homosexual woman but with a heterosexual woman. When the case went to the Scottish EAT, the court surprisingly agreed. It also decided that section 1 of the SDA was unclear on the meaning of "sex".

Both Scottish and English case law has established that, if domestic legislation is uncertain, then courts should interpret legislation in accordance with the European Convention on Human Rights and case law. The EAT said such cases indicated that "sex" should be interpreted to include sexual orientation and also that MacDonald had suffered discrimination under the SDA. The HRA made no difference because, in the absence of uncertainty, UK law prevailed. Also the SDA's exclusion of sexual orientation of sexual orientation was not incompatible with the convention, as this contained no right to protect against sexual orientation discrimination. The Court of Session found by a majority that the appropriate comparator for the MacDonald case was a homosexual woman.

Since such a person would also have been required to resign on the grounds of homosexuality under the employer's policy at the time, it decided that MacDonald had not been discriminated against on the grounds of sex. As a consequence MacDonald suffered less favourable treatment on the basis of his sex, and had been unlawfully discriminated under the SDA. Although the courts concerned arrived at their conclusions by slightly different routes, these cases confirm that neither European nor UK law can be seen to give protection against discrimination on the basis of sexual orientation. This is true even for public - sector employees if the directives are sufficiently distinctive. The higher courts have shown that they are currently not prepared to change British legislation to fit in with HRA policies. As proven above the case of Secretary of State vs. MacDonald highlights the inconsistencies and uncertainties and that exist in both domestic and European law for people claiming sexual orientation discrimination.

So although in domestic interests the Court of Appeal in Smith vs. Gardner Merchant (1999 ICR 134; CA) has recognised that sexual orientation could constitute sex discrimination, this will be the case only where a lesbian had been treated in the way that a gay man would not have been, or vice versa. The decision in the Pearce vs. Governing Body of Mayfield School (2001 IRLR 669; CA) where a lesbian suffered homophobic abuse by pupils demonstrates the above problems. The applicant regularly suffered homophobic abuse at the hands of the pupils in the school in which she worked, this was mainly oral abuse. The EAT held that such harassment was not unlawful sex discrimination for the purposes of the SDA: the category 'sex' in the SDA does not cover sexual orientation; and further, Pearce had not suffered adverse treatment on the basis of her sex as a homosexual man would not have been treated any differently. The reasoning in Pearce focuses on the victim's lesbianism to come to the conclusion that the remarks made against her, although sexual in nature, constituted harassment on the basis of sexual orientation rather than sex discrimination. But the EAT could equally have concentrated on the gender of the applicant, with a very different outcome.

In MacDonald, and the Court of Appeal in Pearce, I can conclude that the appropriate comparator to determine whether MacDonald has suffered less favourable treatment on the basis of his sex under the SDA is a heterosexual woman. Following the decisions made in the Strathclyde Regional Council vs. Porcelli (1986) IRLR 134 and In situ Cleaning Co Ltd vs. Heads (1995) IRLR 4 comments of an overtly sexual nature made by a man to a woman form the basis of a sex discrimination claim, whether or not they are also made to a man. The comments made in Pearce are clearly of a sexual nature, referring to intimate sexual acts and choices. An argument can be made then, that Pearce was excluded from sex discrimination because she was a lesbian, and that a heterosexual woman would have been protected from such adverse treatment.

It has also been found that similar discrepancies exist in the European Union Law for lesbians and gay men alleging discrimination on the basis of their sexual orientation. The difficulty in challenging such treatment is the current absence of specific laws prohibiting it, and lesbian and gay workers have to depend on general employment laws, which have not always proved of much use in these circumstances. Framework Directive 2000/78 encourages the UK to enact legislation on the basis of sexual orientation by December 2003. Yet as a result of Grant vs. South-West Trains (1998), a case involving a refusal to give a lesbian partner travel concessions which would normally be available to the partner of an employee in a heterosexual relationship, all ER 193 in which the European Court of Justice held that Article 141 of the EC treaty did not apply to discrimination on the basis of sexual orientation, so there are currently no solutions for lesbian and gay applicants. It can be drawn that after decisions in the Salgueiro da Silva Mout a case and Smith and Grady case, the European Court of Human Rights recognises that differential treatment on the basis of sexual orientation is unlawful when it falls within the scope of another right under the Convention. This has potential for a lesbian or gay man alleging that a public authority has not acted according with the HRA.

However the limitations of the HRA are clear. First, Article 14 is not solely an anti-discrimination provision, therefore an applicant has to resort to gain protection from other Conventions rights. Yet the Convention contains no employment rights, minimising the potential of even public sector employees to engage the HRA in cases of discriminatory treatment. The HRA also does not apply to private employers. The SDA, of course, does. Allowing MacDonald's claim would have resulted in a prohibition on sexual orientation discrimination for all employers, public or private.

The appeals courts will have further opportunities to reconsider this issue. The judgement of the Court of Appeal in Pearce was about to happen at the time at which this information went to the press, and MacDonald may now exercise his right to appeal to the House of Lords. It can be said that the need to correct the inconsistencies within domestic law, and between domestic and European law concerning claims of discrimination brought by lesbians and gay men, must compel the House of Lords. The problem of dealing with the issue of sexual orientation is supported by the fact that there are three jurisdictional bodies involved, namely the UK employment tribunals and appeal courts, the European Court of Justice, and the European Court of Human Rights. However recent developments on the issue that three equality bodies could share responsibility for the areas of sexual orientation have been sparked by moves made by the Equal Opportunities Commission (EOC). The EOC wrote to the Cabinet Office Minister to suggest that it could take responsibility for sexual orientation.

It has been proposed as an interim arrangement while the government considers its favoured option. An EOC spokeswoman told the PM that the organisation had the experience that was needed to take on the issue of sexual orientation. This might calm fears among employers who thought they would be unprepared if there is no body to help implement any new legislation coming into force. Until such time as the EU's anti-discrimination framework directive is implemented in the UK, the decision over whether equal opportunities policies and practices should include sexual orientation remains solely with employers. The MacDonald and Pearce cases emphasise the need for the EU anti-discrimination framework directive to cover sexual orientation discrimination. The directives are due to be implemented in the UK by December 2003.

The implementation of the EC directives will not fill the existing gaps in UK anti-discrimination law, but it will decrease the deficiencies in the law. Obviously new, clear UK legislation will be needed. The new legislation is also radical and contains many traps for employers. Employers could become vulnerable to claims of discrimination on the grounds of sexual orientation, as it would enable claims to be made before draft European legislation preventing discrimination on the grounds of sexual orientation took effect.

The case of Pearce will encourage employees not to give up their claims. The rights it introduces are likely to influence those who have suffered discrimination at work because as we know it has been notoriously difficult to succeed on these grounds. The regulations will protect those receiving less favourable treatment based on their sexual orientation. Those who associate with, or refuse to carry out an instruction to discriminate against, colleagues of a particular sexual orientation will also be protected. And finally there are two further developments to consider in the future.

The sexual orientation discrimination bill has had three readings in the House of Lords and is now on it way to the Commons. The bill seeks to rectify the SDA to include discrimination based on sexual orientation. On the European front, the Amsterdam treaty, likely to be ratified sometime later this year, will lead to a new Article 6 A being incorporated into the Treaty of Rome. The courts have ruled together that sexual orientation in not covered by existing law. The legislators must now move to uphold this position or adopt new measures to change it. For HR professionals, the best advice may be to begin implanting reviews and changes to policies and practice, as it is likely that another prohibited ground, in the UK at least will be added to the complex area of discrimination law.