COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Strand, London, WC2A 2LL
Tuesday 31st July 2001
B e f o r e :
LORD JUSTICE JUDGE
LADY JUSTICE HALE
| SHIRLEY PHYLLIS PEARCE
|- and -
|THE GOVERNING BODY OF MAYFIELD SCHOOL
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Messrs Tyndallwoods for the Appellant)
Ms C Booth Q.C. & Ms S Moore
(instructed by Hampshire County Council Legal Department for the Respondent)
Crown Copyright ©
LADY JUSTICE HALE:
a) Was any of the behaviour of which the appellant complains sex discrimination within the meaning of the 1975 Act, irrespective of the Human Rights Act 1998?
b) If it was not, has the implementation of the duty in section 3(1) of the 1998 Act, "so far as it is possible to do so" to read and give effect to legislation in a way which is compatible with the Convention rights made a difference?
c) If it has or might have made a difference, does section 3 operate retrospectively so as to affect liability for events taking place before the 1998 Act came into force?
d) If there was sex discrimination, is the school to be held responsible under the 1975 Act for subjecting the appellant to the behaviour of its pupils?
Was it sex discrimination?
"A person discriminates against a woman in any circumstances relevant for the purposes of this Act if (a) on the ground of her sex he treats her less favourably than he treats or would treat a man."
There is no doubt that what happened to Ms Pearce was discrimination, in the sense that the pupils treated her less favourably than they treated other teachers. The employment tribunal (paragraph 59) found that "the applicant has undoubtedly suffered very badly at the hands of the pupils." The pupils singled her out for particularly unpleasant abuse because she was a lesbian. There were references to lemons and the smell of lemons; she was called "a lesbian shit", "lezzie", "lemon", "dyke"; this took place in class, elsewhere in the school, and outside. In one incident, a pupil had said "I hate lezzies and queers. I think they should all be prosecuted, don't you Miss?" In the worst incident of all, pupils persistently called out the word "pussy"; there were comments about the smell of fish and cat food; at the end of the afternoon, the applicant found an opened tin of cat food and half its contents in her coat pocket.
"A comparison of the cases of persons of different sex ... under section 1(1) ... must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
This difficult issue was considered by this court in Smith v Gardner Merchant  IRLR 510. A male homosexual barman complained of offensive remarks about his sexuality from a female colleague. Ward LJ accepted (paragraph 39) that discrimination based upon homosexuality might also be discrimination because he was a man. The questions were (paragraph 40):
"(a) what, as a matter of fact was the treatment received by the employee; (b) was he treated less favourably than the woman with whom he falls to be compared; and (c) would he have been so treated but for his sex?"
However, Ward LJ rejected the argument that a homosexual male, like a pregnant woman, was in a unique category with no equivalent in the opposite sex and thus there could be no comparator. He also rejected the argument that the appropriate comparator was a heterosexual woman.
"I agree with Morison J that in general in cases of sexual harassment there is no necessity to look for a comparison with a particular person of the opposite sex. In the case of a man who sexually harasses a woman at work, it will usually be the case that the man would not have sexually harassed another man ... but ... the question is whether the sexual harassment took place because of the sex of the victim, not whether it would have amounted to sexual harassment of persons of the opposite sex; equally the question is not whether the sexual harassment would have amounted to sexual harassment of a person of the opposite sex who has particular sexual inclinations." (paragraph 91)"
"In my judgment the appellant's only hope of success under this head will lie in satisfying the tribunal that the harassment occurred because he was man with a particular relevant personal characteristic rather than a woman with the same relevant characteristic. The relevant characteristic in the present case happens to be homosexuality." (paragraph 69)
Does section 3(1) of the Human Rights Act 1998 make a difference?
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
Just how strong this obligation is has recently been emphasised by the House of Lords in R v A  2 WLR 1546, per Lord Steyn at paras 44 - 45. By section 3(2)(a) it "applies to primary legislation and subordinate legislation whenever enacted". Thus we are enabled, indeed required, to give the legislation a different meaning from that which it has previously been held, even by binding authority, to have. We are also, as it seems to me, required to give it a different meaning in order to secure compatibility with human rights from that which it holds where those rights are not engaged.
"Everyone has the right to respect for his private and family life, his home and his correspondence."
Sexual behaviour is undoubtedly an aspect of private life, indeed a most intimate and important aspect of private life. Any interference by the State can only be justified under Article 8(2). To be justified it must be "necessary in a democratic society", two hallmarks of which are tolerance and broadmindedness. Thus laws making certain homosexual acts criminal in any event were contrary to the Convention: see Dudgeon v United Kingdom (1981) 4 EHRR 149, especially at paragraph 52. So too were the intrusive investigations by the military police into the private lives of members of the armed forces suspected of being homosexual, and their consequent discharge on the sole ground of their sexual orientation: see Smith and Grady v United Kingdom  IRLR 734.
"116 There is no good reason why the concept of privacy should, as was suggested, be restricted simply to sealing off from State control what happens in the bedroom, with the doleful subtext that you may behave as bizarrely and shamefully as you like, on the understanding that you do so in private. It has become a judicial cliché to say that privacy protects people, not places. Blackmun J in Bowers, Attorney General of Georgia v Hardwick et al 478 US 186 (1986) made it clear that the much quoted 'right to be left alone' should not be seen simply as a negative right to occupy a private space free from government intrusion, but as a right to get on with your life, express your personality and make fundamental decisions abut your intimate relationships without penalisation. Just as 'liberty must be viewed not merely "negatively or selfishly as a mere absence of restraint but positively and socially as an adjustment of restraints to the end of freedom of opportunity"', so must privacy be regarded as suggesting at least some responsibility on the State to promote conditions in which personal self-realisation can take place."
He goes on to link that to the concepts in the South African Constitution:
"117. The emerging jurisprudence of this Court is fully consistent with such an affirmative approach. In Bernstein and Others v Bester and Others NNO 1996 (2) CA 751, Ackerman J pointed out that the scope of privacy had been closely related to the concept of identity and that
'... rights, like the right to privacy, are not based on a notion of the unencumbered self, but on the notion of what is necessary to have one's autonomous identity ... . In the context of privacy this would mean that it is ... the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community.'
Viewed in this way autonomy must mean far more than the right to occupy an envelope of space in which a socially detached individual can act free from interference by the State. What is crucial is the nature of the activity, not its site. While recognising the unique worth of each person, the Constitution does not presuppose that a holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined."
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
In Salgueiro da Silva Mouta v Portugal  1 FCR 653, the European Court of Human Rights held that discrimination based on sexuality was covered by this prohibition, not because "sex" includes "sexuality" but because the list is not exhaustive. In my view, sexuality is in the same category as the characteristics which are listed. It may not be as visible as sex or race, but it is equally an inherent quality of the individual and one which may well lead to arbitrary unfavourable treatment for which there is no objective justification. Heterosexual people take it for granted that they need make no secret of their sexuality, they can make public their commitment to their partners, they may display their affection in a seemly way in public, and do not expect to be subjected to prolonged or repeated abuse or bullying for doing so. Homosexual people are entitled to the same respect.
"A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may -
(a) bring proceedings against the Authority under this Act in the appropriate court of tribunal, or
(b) rely upon the Convention right or rights in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act."
However, this provision is only retrospective to the limited extent provided for in section 22(4):
"Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that subsection."
In section 7(6) it is provided that in section 7(1)(b) "legal proceedings" includes "an appeal against the decision of a court or tribunal". In Secretary of State for Defence v MacDonald, 1 June 2001, in the Inner House of the Court of Session, Lord Prosser accepted the argument that the retrospectivity provision in section 22(4) applied to an appeal brought by a public authority. This would have the curious result that where, as in that case, the proceedings had been instigated by a private individual against a public authority, and the lower court found against the public authority, section 22(4) would apply to any appeal brought by the public authority; but where, as in this case, the lower court found in favour of the public authority, section 22(4) would not apply to an appeal brought by the private individual. The speeches of the majority of their Lordships in R v Lambert  UKHL 37 do not support Lord Prosser's view on this point.
"Mr MacDonald is attracted by males. He should be compared with a woman who is attracted by males. I see no basis for departing from this simple comparison in favour of one which builds in no new fact, but treats as crucial what in my view is merely a comment on orientation, as revealed by those same facts."
He later (in paragraph 39) makes the following extremely powerful point:
"... in the context of racial discrimination, a veto on mixed marriage can scarcely be justified by saying that black and white are treated alike because each is permitted to marry a person of the same, or their own, colour. There is discrimination on the ground of colour in such a situation despite the 'equal' treatment of persons of either colour. And that would not be altered by recourse to linguistic obfuscation, by inventing concepts of homoethnicity and heteroethnicity. These are not extra circumstances……That kind of comparison, with supposedly equivalent but objectively different circumstances, is in my view likely to be destructive of one of the fundamental aims of the Act - that women should be able to do things previously or traditionally or conventionally regarded as the preserve of men, and vice versa."
"I regard [section 3(1)] as applying to all cases coming before the courts on or after 2 October 2000, irrespective of when the activities which form the subject matter of those cases took place. That applies irrespective of the date of the legislation (see section 3(2)(a)) and I can see no reason to adopt one interpretation of a statute from October 2, 2000 onwards in a case involving activities before that date and a different interpretation where the activities took place after that date."
All three members of the Inner House in Secretary of State for Defence v MacDonald, 1 June 2001, agreed with this, albeit obiter, as Lord Prosser would have reached the same result in any event and Lord Kirkwood and Lord Caplan did not consider that human rights were engaged.
"The effect of section 22(4) is not in doubt. It provides (by the second limb of the section) that, in general, section 7(1) does not apply to an act taking place before 2 October 2000. So, for example, a person who claims that a public authority has acted in a way which is incompatible with a convention right (contrary to section 6(1) of the 1998 Act) cannot bring proceedings against the authority under the 1998 Act (pursuant to section 7(1)(a)) if the unlawful act took place before 2 October 2000. Nor, it seems, can a person who complains that a court or tribunal has acted in a way which is incompatible with a convention right (contrary to section 6(1) of the 1998 Act) rely upon that as a ground of appeal against the decision of that court or tribunal in a case where the decision complained of was made before 2 October 2000 - see section 7(1)(b) and section 7(6)(b) of the 1998 Act."
That passage was expressly approved by Lord Hope in R v Lambert  UKHL 37, at paragraph 116. Sir Andrew Morritt reiterated the point in paragraph 21:
"Nor should the decisions of courts and tribunals made before those sections had come into force be impugned on the ground that the court or tribunal was said to have acted in a way which was incompatible with convention rights."
That passage was expressly approved by Lord Slynn of Hadley in R v Lambert  UKHL 37, at paragraph 13.
"... it would be surprising if section 6 which has no express provision extending its effect, produced a contrary result so as to be applicable to acts which took place before the Convention rights became part of domestic law. Equally it would be surprising if section 3, which again has no express retroactive effect, could succeed where section 22(4) and section 7(1)(b) fail."
Lord Hope of Craighead said much the same at paragraph 115:
"As soon as section 3(1) was brought into force the interpretative obligation was binding on all courts irrespective of the date when the legislation was enacted. I agree that it would have been binding on the trial court had the section been in force at the date of the trial. But there is nothing in the 1998 Act to indicate that that subsection is to be applied retrospectively to acts of courts or tribunals which took place before the coming into force of section 3(1). The provisions of section 22(4) are to the contrary. There would have been no point in enacting that section 7(1)(b) was to have retrospective effect in the way in which that subsection provides but not otherwise if appellate courts were to be obliged by section 6(1) to give retrospective effect to that subsection in all cases where they were required to adjudicate upon acts by courts or tribunals as public authorities."
The school's responsibility
"A person subjects an employee to the detriment of racial harassment if he causes or permits the racial harassment to occur in circumstances where he can control whether it happens or not."
Hence (paragraph 38),
"The tribunal should ask themselves whether the event in question was something which was sufficiently under the control of the employer that he could, by the application of good employment practice, have prevented the harassment or reduced the extent of it. If such is their finding, then the employer has subjected the employee to the harassment".
"The word 'subjecting' ... connotes 'control'. A person 'subjects' another to something if he causes or allows that thing to happen in circumstances where he can control whether it happens or not."
The tribunal went on to conclude that the school had reacted properly and promptly to the one incident which in its view did amount to sex discrimination. As far as the major part of the rest of the abuse suffered by the applicant, however, it would have found that the school had not taken appropriate steps and was directly responsible. It described the school's attitude as "firefighting":
"They appeared merely to shrug their shoulders at those incidents where the applicant could not name the pupils. They allowed the problem to continue over an unacceptable time. They failed to take any action which involved the whole school rather than just individual named pupils and they failed to offer adequate support to the applicant."
The tribunal was also critical of the attitude of the headteacher, who suggested that the applicant should "grit her teeth" and that if she found any difficulties in the future she could "run away again". Senior management was dismissive of the suggestion that the matter should be included in the school's equal opportunities policy.
a) What took place in this case was not, at the time when it took place, sex discrimination within the meaning of the Sex Discrimination Act 1975: Smith v Gardner Merchant  IRLR 510 is binding upon us unless it must now be revisited in the light of the Human Rights Act 1998.
b) Had it been sex discrimination, however, the employment tribunal was entitled to find that the school were responsible because they had subjected Ms Pearce to a detriment.
c) What took place in this case is capable of being a contravention of the Convention right to respect for private life under Article 8 when read with the prohibition of discrimination in the enjoyment of Convention rights under Article 14. A remedy might therefore lie against a public authority under sections 6 and 7 of the Human Rights Act 1998 in respect of acts taking place on or after 2 October 2000.
d) It is possible to "... read and give effect to ..." the Sex Discrimination Act 1975 compatibly with those rights, not by reading "sex" to mean "sexuality", but by regarding sexuality as an irrelevant circumstance for the purpose of the comparison required by section 5(3) of the 1975 Act. Whether this has to be done would depend, in any particular case, upon whether what happened was in fact a contravention of Convention rights. It would also depend upon whether a court or tribunal is obliged by section 3(1) to adopt such a construction, not only in cases involving a public authority, but in all cases.
e) However, this Court is not required or indeed permitted to apply section 3(1) of the 1998 Act so as to construe the 1975 Act in a way different from that which was binding upon the lower tribunals (and on this Court) at the time.
Accordingly I would dismiss this appeal.
LORD JUSTICE JUDGE:
"A person discriminates against a woman in any circumstances ….. if on the ground of her sex he treats her less favourably than he treats or would treat a man ..."
"A comparison of the cases of persons of different sex…. under s1(1)….. must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
"... whether the event in question was something which was sufficiently under the control of the employer that he could, by the application of good employment practice, have prevented the harassment or reduced the extent of it."
"However, taking the case of direct discrimination under s1(1)(a) of the Act, I incline to the opinion that, if it were necessary to identify the requisite intention of the defendant, that intention is simply an intention to perform the relevant act of less favourable treatment. Whether or not the treatment is less favourable in the relevant sense, i.e. on the ground of sex, may derive either from the application of a gender-based criterion to the complainant, or from selection by the defendant of the complainant because of his or her sex….. As I see it, cases of direct discrimination under s1(1)(a) can be considered by asking the simple question: would the complainant have received the same treatment for the defendant but for his or her sex? This simple test possesses the double virtue that, on the one hand, it embraces both the case where the treatment derives from the application of a gender-based criterion, and the case where it derives from the selection of the selection of the complainant because of his or her sex."
"The right question framed in terms of s1(1)(a) is whether the applicant, a man, had been less favourably treated than his employers treated or would have treated a woman"
"Was he discriminated against because he was a man (sex) or because he was a homosexual (sexual orientation)?"
and explained that this question was erroneous because:
"... one does not make the comparison which the statute requires – namely between his position as a man, and the comparative position as a woman. The fault in the argument is that it precludes consideration of a vital question, namely whether or not discrimination against him based upon his homosexuality may not also be discrimination against him as a man".
"The only proper way for the Tribunal to compare like with like will be to compare the treatment which Ms Touhy (the female employee) directed to the appellant with the treatment she would have directed to a female homosexual. If the facts were to show that she had a rooted aversion to homosexuals of either sex and that she would have subjected a female homosexual to the like harassment, the appellant's claim under this head would inevitably fail because no discrimination under s1(1)(a) would have been established…. The appellant's only hope of success under this head will lie in satisfying the Tribunal that the harassment occurred because he was a man with a particular relevant personal characteristic rather than a woman with the same relevant characteristic."
"the possibility of a valid claim ... arising from discrimination against homosexuals of one sex in circumstances when it would not have been directed against homosexuals of the other sex."
"In the case of a male victim, the question is whether he was treated in the way he was because he was a male with a particular sexual inclination".
He continued by acknowledging the concession that discriminatory treatment
"... of a person on grounds of sexual orientation does not amount to discrimination on ground of sex".
Accordingly he was unable to see how the
"sexual orientation of the victim is to be regarded as a relevant circumstance and, if it is not relevant in the case of the victim, it cannot be relevant in the case of the person of the opposite sex with whom the comparison is made".
"... on the implementation of the principle of equal treatment for men and women as regards access to employment. ... and working conditions",
(which was directly linked with the Sex Discrimination Act 1975) and Article 235 of the EEC Treaty, Simon Brown LJ, at 543 said:
"I have no doubt that the ordinary and natural meaning of "sex" in this context is gender. Of course the word is apt to encompass human characteristics as well as people's anatomical qualities; as Miss Cox points out, discrimination is very often based on stereotypical assumptions as to gender characteristics. Orientation, however, is quite another thing. If, of course, an employer were willing to employ lesbians but not male homosexuals, that would be discrimination on grounds of sex, where, however, as here, an employer refuses to accept homosexuals of either sex, that is discrimination on the grounds of orientation".
"I find nothing whatever in the EEC Treaty or in the Equal Treatment Directive which suggests that the draftsmen of those instruments were addressing their minds in any way whatever to problems of discrimination on grounds of sexual orientation. Had it been intended to regulate discrimination on that ground it could easily have been done, but to my mind it plainly was not."
"... any common sense construction of the Directive ... leads in my judgment to the inevitable conclusion that it was solely directed to gender discrimination and not to discrimination against sexual orientation. ... It seems to me that if the European Union is to proscribe discrimination on the grounds of sexual orientation that must be achieved by a specific Directive and not an extended construction of the Directive of 1976."
"based on sexual orientation are included in the 'discrimination based on sex' prohibited by Article 119. ... Community law as it stands at present does not cover discrimination based on sexual orientation." (p 219, paragraph 47) (see, further, the opinion of the Advocate General in D v Kingdom of Sweden, presented on 22nd February 2001, at paragraph 94)
"Nor, it seems, can a person who claims that a court or tribunal has acted in a way which is incompatible with a Convention right (contrary to s6(1) of the Act) rely on that as a ground of appeal against the decision of that court or tribunal in a case where the decision complained of was made before 2 October 2000. ... Nor should the decisions of the courts and tribunals made before those sections had come into force be impugned on the ground that the court or tribunal was said to have acted in a way which was incompatible with Convention rights."
"There is nothing to show that it was intended by s3 that the meaning given to a statutory provision by a court prior to 2 October 2000 should be changed in the event of an appeal against that decision being heard on or after that date."
"The applicant has not put forward any evidence or argument to suggest that a male homosexual teacher would have been treated any differently either by the pupils or by the school, and in particular we have heard no evidence that a hypothetical homosexual male teacher would have been treated more favourably than the applicant. Indeed, the evidence is all the other way, since the applicant called evidence from ..., a former teacher, who indicated that he had been subjected to taunts on the ground of what the pupil believed to be his sexuality, although he is not, in fact, a homosexual, and there has certainly been no suggestion that he was treated more favourably by the school than the applicant was."
LORD JUSTICE HENRY:
I. I also agree with Judge LJ that the criticism of the school as "institutionally homophobic" was misplaced on the evidence.