Case No: A1/2000/2226
Neutral Citation Number: [2001] EWCA Civ 1347
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL  DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 31st July 2001

B e f o r e :
LORD JUSTICE HENRY
LORD JUSTICE JUDGE
and
LADY JUSTICE HALE
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	SHIRLEY PHYLLIS PEARCE	Appellant	
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	THE GOVERNING BODY OF MAYFIELD SCHOOL	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Ms L Cox QC & Ms S Drew 
(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)
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Judgment
Lady Justice Hale:
1.	The appellant is a science teacher of many years’ standing.  She joined the staff of the respondent school in 1975.  She is also a lesbian.  From the early 1990s, she was subject to  repeated abuse from the pupils, both in words and behaviour.  The response of the school was, in her view, seriously inadequate.  Eventually her health suffered and she took early retirement in 1996.  She brought these proceedings under the Sex Discrimination Act 1975 (“the 1975 Act”).  On 1 April 1999, an employment tribunal held that, with one exception, what had happened to her was not discrimination on grounds of sex within the meaning of the Act.  The school had dealt adequately with that particular incident, but would have been responsible for the major part of the abuse she had suffered, had that been sex discrimination under the Act.  In a judgment delivered on 7 April 2000, the Employment Appeal Tribunal dismissed her appeal and substituted a finding that none of the pupils” behaviour constituted sex discrimination but also stating that if it had been they would have remitted the question of whether the school was responsible for it.  The Human Rights Act 1998 (“the 1998 Act”) came into force on 2 October 2000.
2.	On appeal to this court, the following issues arise: 
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?
3.	Section 1(1)(a) of the 1975 Act provides: 
“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.
4.	But discrimination is only unlawful if it is on the particular grounds prohibited by statute: race, sex (including gender reassignment) or disability.  There is, at the moment, no legislation expressly prohibiting discrimination on grounds of sexual orientation, although the Treaty of Amsterdam will require it to be in place before 2 September 2003.  Furthermore, discrimination is defined as treating a person less favourably than an actual or hypothetical comparator of the opposite sex.  There was no evidence in this case that the pupils would have treated a male homosexual teacher any more favourably than they treated Ms Pearce, or that the school’s response to similar abuse of a male homosexual teacher would have been any different.
5.	Nevertheless, there are two respectable arguments that this was less favourable treatment on grounds of sex.  The first is based upon the gender specific nature of the abuse itself.  The words used could not have been used of a man.  Thus, argues Miss Cox QC on behalf of Ms Pearce, this is analogous to sexual harassment.  She relies upon Porcelli v Strathcly de Regional Council [1986] IRLR 134, a decision of the Court of Session.  Two male laboratory technicians engaged in a deliberate policy of making life as difficult as possible for their female colleague; some of this included sexually suggestive remarks and behaviour.  The employment tribunal held that “it was clear that some of the treatment was different from what they would have directed towards a man in that there was certainly a degree of sexual harassment”.  However, had the applicant been a man whom the two disliked as much as they disliked her, they would have treated him just as unfavourably.  “The specific nature of the unpleasantness might have been different but it would in our view have been no less unpleasant.” The Court of Session, however, held that the sexual harassment part of the campaign was clearly directed against the applicant because she was a woman.  “It was a particular kind of weapon, based upon the sex of the victim, which ... would not have been used against an equally disliked man.” It was the nature of the treatment, rather than the motive, which made it different from and less favourable than the treatment given to a man.
6.	The second argument concerns the sort of man with whom the appellant is to be compared.  Section 5(3) requires that
“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 [1998] 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.
7.	The source of this argument is Dr Robert Wintemute: see “Recognising new kinds of sex discrimination: transsexualism, sexual orientation and dress codes” [1997] 60 MLR 334; and now “Lesbian and Gay Inequality 2000: the Potential of the Human Rights Act 1998 and the Need for an Equality Act 2002” [2000] EHRLR 603.  It runs as follows.  The relevant characteristic of the complainant when considering the unfavourable treatment was his preference for male sexual partners.  For the purpose of the comparison all other circumstances must remain the same and only the sex of the comparator changed.  Thus the relevant comparator is a woman who also has a preference for male sexual partners.  Ward LJ saw the force of the argument and so do I.  Those who treat homosexuals of either sex less favourably than they treat heterosexuals do so because of their sex: not because they love men (or women) but because they are men who love men (or women who love women).  It is their own sex, rather than the sex of their partners, which is the problem.
8.	Nevertheless, Ward LJ rejected the argument.  Section 5(3) requires that the relevant circumstances are identified.  This will depend upon the nature of the complaint and the factual matrix within which it is made (paragraph 49).  In that case the complainant himself had identified his homosexuality as the relevant characteristic (paragraph 50).  Hence the comparator was a homosexual woman (paragraph 51).
9.	Beldam LJ took a rather different view, based upon Porcelli v Strathclyde Regional Council [1986] IRLR 134, as applied by Morison J in the EAT in British Telecommunications PLC v Williams [1997] IRLR 668:
“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)”
10.	Sir Christopher Slade agreed (paragraph 63) that the tribunals below had erred in not recognising that in some circumstances discrimination stemming from the victim’s sexual orientation may at the same time constitute discrimination on the ground of sex.  But he disagreed with Beldam LJ (paragraph 67): sexual harassment was not specifically provided for in the Act and gave rise to no principles different from any other claim (paragraph 68).
“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)
11.	Identifying the relevant characteristics for comparison is no easy matter in practice, as is amply demonstrated by the tribunals’ conclusions in this case.  Almost all of the pupils’ behaviour complained of was gender specific: the words of abuse were only capable of being directed at a woman.  The employment tribunal (paragraph 81) distinguished between the usual run of abuse and the pussie and cat food incident.  The latter was “directly referring to a woman and a woman’s anatomy, not to a lesbian woman” and was in their view capable of amounting to sex discrimination.  Both counsel criticise this conclusion.  Ms Cox argues that almost all the conduct was gender specific and thus falls within the Porcelli principle.  Ms Booth QC for the school argues that it was simply another example of homophobic abuse, similar to and no less favourable than the abuse which would have been suffered by a hypothetical male homosexual teacher.  The Employment Appeal Tribunal agreed with Ms Booth.
12.	I very much regret that I am driven to the same conclusion.  I am driven to it because the decision of the majority in Smith v Gardner Merchant is binding upon us.  Indeed, I am not convinced that Beldam LJ took a radically different view.  The “gender specific” behaviour argument cannot be taken that far.  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.  It would be different if the Wintemute comparator argument had been accepted, but it was not.
13.	If the sex specific nature of the abuse were to be determinative in this case, as the Employment Appeal Tribunal pointed out, it would lead to the curious result that what Ms Pearce had to suffer might be sex discrimination, while less gender specific but equally sexual abuse suffered by a male teacher was not.  Nor would it be sex discrimination to refuse to employ homosexuals at all, or to sack them if their sexual orientation were later discovered, as in R v Ministry of Defence, ex parte Smith [1996] QB 517, or to deny them fringe benefits available to employees in heterosexual relationships, as in Grant v South West Trains [1998] ICR 449.  If, on the other hand, Dr Wintemute’s argument that the appropriate comparator is a heterosexual person of the opposite sex were accepted, all of these would be capable of being sex discrimination and the results would be far less curious.
Does section 3(1) of the Human Rights Act 1998 make a difference?
14.	All of that was decided before the Human Rights Act 1998 came into force on 2 October 2000.  It is tempting to conclude that the 1998 Act does indeed make a difference.  Section 3(1) lays an extremely strong interpretative obligation upon the courts:
“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 [2001] 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.
15.	I take the view that what happened in this case was incompatible with Ms Pearce’s rights under Articles 8 and 14 of the European Convention.  Article 8(1) provides that 
“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 [1999] IRLR 734.
16.	The tabulated right, as Sedley LJ has observed in Re F (Adult: Court’s Jurisdiction) [2000] 1 Fam 38, at p 57, is to “respect” for one’s private life.  Furthermore, as long ago as Marckz v Belgium (1979) 2 EHRR 330, the European Court of Human Rights decided that, “although the object of Article 8 is ‘essentially’ that of protecting the individual against arbitrary action by the public authorities,  ... in addition to this primary negative undertaking, there may be positive obligations inherent in an effective respect for family life.” Although the Court has not so far held that homosexual relationships are “family life” there are similar positive obligations to secure effective respect for private life: see X and Y v The Netherlands (1986) 8 EHRR 235.
17.	Even without any positive obligation, it is evident that that respect goes further than simply refraining from interference with what goes on in the privacy of the home.  I cannot put it better than it was put by Sachs J in the South African Constitutional Court in National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6:
	“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.”
18.	If this is a right enjoyed by hetero-sexual people under Article 8, then it must also be accorded to homosexuals.  Discrimination is prohibited by Article 14 of the Convention:
“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 [2001] 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.
19.	Hence for a public authority to subject a person to a sustained campaign of homophobic abuse would in my view be “to act in a way which is incompatible with a Convention right” and thus unlawful within the meaning of section 6(1) of the 1998 Act.  A new remedy for such unlawful behaviour is now provided by section 7(1) of the Act:
“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 [2001] UKHL 37 do not support Lord Prosser’s view on this point.
20.	But that is by the way, as Ms Pearce cannot rely upon section 7 in any event.  The question in this case is not whether she might succeed in an action under section 7 were she now to be suffering as she suffered in the 1990s.  The question is whether the implementation of the 1998 Act has made a difference to her claim under the Sex Discrimination Act 1975.  That in turn depends upon the answer to three questions.  First, is it possible to read and give effect to the Sex Discrimination Act 1975 so as to cover what happened in this case? Second, if the matter were to arise now, would the court be obliged so to do? Third, given that the events complained of and the decisions of the tribunals under appeal all took place before 2 October 2000, has the 1998 Act made a difference? Because of the conclusion reached on the third of these questions in the light of recent House of Lords” authority in R v Lambert [2001] UKHL 37, any views expressed on the first two are both tentative and strictly obiter dicta.  However, in view of the very full arguments presented to this court, and the decision of the Court of Session in Secretary of State for Defence v MacDonald, 1 June 2001, for which this decision was delayed, a few observations are necessary.
21.	First, it is obviously “possible” to read and give effect to the 1975 Act so as to cover what happened in this case.  This does not involve reading the word “sex” to include “sexual orientation”.  In Secretary of State for Defence v MacDonald, 1 June 2001, the Inner House were unanimous in holding that “sex” in the 1975 Act meant “gender”.  They pointed to the context, in which the treatment of a woman is compared with the treatment of a man, and to the references to members of “the opposite sex” (eg in ss 26 and 43(2)), to “one sex only” (eg in ss 26, 33, 43(2)) or to a “single sex establishment” (in s 26), and to “both sexes” (in s 79(6)).  These references do not admit of three or four different sexes.  I therefore agree with all members of the Inner House that “sex” in the 1975 Act means “gender” and that it is not possible to read it in any other way.
22.	However, it is possible to read and give effect to the 1975 Act as covering what happened in this case if one accepts Dr Wintemute’s argument, the force of which was acknowledged by Ward LJ in Smith v Gardner Merchant [1998] IRLR 510.  On that argument, the comparator is not a heterosexual person of the same sex as the applicant but a heterosexual person of the opposite sex.  To do this, there is no need to read anything into or out of the 1975 Act.  It is simply necessary to reject sexuality as a “relevant circumstance” for the purpose of identifying the comparator of the opposite sex under section 5(3) of the 1975 Act.
23.	This argument was accepted by Lord Prosser in Secretary of State for Defence v MacDonald, 1 June 2001.  He was not, as we are, bound by Smith v Gardner Merchant [1998] IRLR 510, and thus was able to reach this conclusion irrespective of the 1998 Act.  Thus (in paragraph 37):
“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.”
24.	Lord Kirkwood and Lord Caplan disagreed.  They both (Lord Kirkwood at paragraph 11 and Lord Caplan at paragraph 7) relied principally upon the fact that it was Mr MacDonald’s very homosexuality which had led to his forced resignation from the Air Force and so it was a very important circumstance to be taken into account in making the comparison.  If, however, Lord Prosser is right that the basic discrimination is grounded on sex, in my view it is wrong to let the discriminator by his very discrimination identify the comparison.  Lord Caplan (at paragraph 9) makes the additional point that if a homosexual man is to be compared with a heterosexual woman, the treatment of a homosexual woman is irrelevant.  This would the produce the curious result that discrimination between homosexuals of different sexes might be permissible whereas discrimination between homosexuals and heterosexuals was not.  In reality, however, the less favourably treated homosexual would also be less favourably treated than his or her heterosexual comparator.
25.	The second question, whether a tribunal or court would be obliged to adopt such a construction were the matter to arise now, is more difficult.  It raises the issue of whether section 3(1) has a “freestanding” effect, so that a court or tribunal is obliged to apply it, even in cases which do not involve a public authority.  Lord Prosser (see paragraph 41) reached his conclusion on the interpretation of the 1975 Act without reference to the 1998 Act and the Convention, but if it had been open to the construction preferred by Lord Kirkwood and Lord Caplan, he would have felt obliged by the Convention and the 1998 Act to reject that alternative interpretation.  The others took the view that there was no incompatibility between their interpretation and the Convention rights because there was no Convention right relating specifically to employment (see Lord Kirkwood, paragraph 10, Lord Caplan, paragraph 10).  So far, however, the view has been taken that courts and tribunals are bound to interpret legislation compatibly with Convention rights even in litigation between private persons.  If so, the Convention right to respect for private life can be infringed by any employer who subjects his employees to the detriment of having that respect infringed when others would not be.  The enjoyment of the right to respect for private life without discrimination under Articles 8 and 14 can be secured under the 1975 Act in the areas which are covered by that Act.
26.	However, does the obligation in section 3(1) of the 1998 Act arise in respect of events taking place before that Act came into force? Is it imposed upon an appeal court even if the decisions under appeal were made before that date? 
27.	Where the first part of section 22(4) (see paragraph 19 above) applies, so that the Convention rights may be relied upon as a defence in proceedings brought by a public authority, the Court of Appeal (Criminal Division) has held that section 3 applies to those proceedings: see R v Benjafield and Others [2001] HRLR 478.  Where judicial review is brought of a decision of the immigration authorities taken before the Act came into force but not yet implemented it may be artificial to distinguish between the position before and after the Act: see R v Secretary of State for the Home Department, ex parte Mahmood [2001] HRLR 270.
28.	Here, however, we have a complaint brought under a particular piece of legislation in relation to events which took place at a time when (according to authority binding upon us) that legislation did not apply in such a way as to make these particular acts unlawful.  Before the 1998 Act was passed, the obligations of the United Kingdom under the European Convention were the obligations of the State: the State might be held responsible for not protecting its citizens from breaches of their Convention rights by others (see, eg, A v United Kingdom (1999) 27 EHRR 611, concerning the failure of the criminal law to protect a child against inhuman and degrading corporal punishment by his stepfather).  Are we now, as a public authority within the meaning of the 1988 Act, to interpret previous legislation in conformity with the obligations which the State has always had since we became parties to the Convention? 
29.	In JA Pye (Oxford) Ltd v Graham and another [2001] 2 WLR 1293, [2001] HRLR 559, two members of the court expressed the view, albeit obiter, that the courts had to apply section 3(1) retrospectively, even in a dispute between private persons.  The claimant’s claim for possession of land was resisted on the ground of more than twelve years’ adverse possession.  This defence succeeded at first instance but failed on appeal.  The claimants had also argued that section 15 of the Limitation Act 1980 should be construed in such a way as to be compatible with their rights under Article 1 of the First Protocol to the Convention.  Both Mummery LJ and Keene LJ held that the limitation period in section 15 of the 1980 Act was not incompatible with Convention rights.  However, Mummery LJ observed (p 574) that section 3 could be relied upon on appeal against an order made before the 1998 Act came into force.  Keene LJ went further, stating (p 575) that
“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.
30.	In Wilson v First County Trust Ltd (No 2) [2001] EWCA Civ 633, [2001] 3 WLR 42, the Court distinguished between the new remedy against public authorities given by section 7(1) of the 1998 Act and the court’s own duty as a public authority to observe section 6(1).  The court has to ask itself whether the order it is about to make is or is not compatible with Convention rights.  This is certainly the view taken in family cases, where it is the court’s own order which may constitute the prima facie interference with Convention rights, particularly in a case between private individuals.  However, in the Wilson case, the effect of the Act was not to change the rights of the parties to the case before it: the court made a declaration that the provision under which it was obliged to deny a creditor a remedy was incompatible with the company’s Convention rights.
31.	In the course of giving the judgment of the Court, Sir Andrew Morritt VC said this (at paragraph 20):
“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 [2001] 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 [2001] UKHL 37, at paragraph 13.
32.	R v Lambert [2001] UKHL 37 was a criminal case, in which the judge had correctly directed the jury in accordance with the law as it stood at the time, but the House of Lords held that the relevant legislation would now have to be read in a different way.  The question was whether this applied to a trial which had taken place before 2 October 2000.  By a majority of four to one, the House held that it did not.  In issue was the duty of a court, as a public authority, not to act in a way rendered unlawful by section 6(1).  Lord Slynn said this, at paragraph 11:
“... 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.”
33.	In my view those passages apply to what is being asked of us in this case.  The employment tribunal on 1 April 1999 and the Employment Appeal Tribunal on 7 April 2000 construed the Sex Discrimination Act in accordance with the law as it then stood.  We are being asked to construe the 1975 Act differently in accordance with the courts’ obligations following the implementation of the 1998 Act on 2 October 2000.  Furthermore we are being asked to do so in order to impose liability where none existed previously.  This would, as the House of Lords has intimated, be wrong in principle.
34.	It would be otherwise, of course, if the House of Lords were to conclude that the case of Smith v Gardner Merchant [1998] IRLR 510 had been wrongly decided in this Court, and that as Lord Prosser decided in Secretary of State for Defence v MacDonald, 1 June 2001, the 1975 Act has always had the meaning claimed.  Unless and until that happens, however, I have concluded that the 1998 Act does not require us to give it a different meaning in cases decided before it came into force.
The school’s responsibility
35.	Under section 41(1) of the 1975 Act, employers are responsible for anything done by their employees in the course of their employment, whether or not done with the employer’s knowledge or approval, unless the employer can prove that he took such steps as were reasonably practicable to prevent it (s 41(3)).  But schools are not automatically responsible for the acts of their pupils.  However, under section 6(2) it is unlawful for an employer to discriminate against an employee “(b) by ... subjecting her to any detriment.” An employer may subject his employees to the detriment of enduring discriminatory behaviour by a third person if he is in a position to prevent its happening.
36.	In Burton and Rhule v De Vere Hotels [1996] IRLR 596, two black waitresses were subjected to a series of racially and sexually offensive jokes by the comedian Bernard Manning at a Round Table dinner held at the hotel.  Smith J, giving the judgment of the Employment Appeal Tribunal stated (paragraph 36), that
“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”.
37.	The employment tribunal in this case referred to the first of these passages in the following terms:
“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.
38.	The Employment Appeal Tribunal criticised the tribunal for not asking itself the exact question posed by Smith J in the second of the two passages quoted above from the Burton case.  It did not ask whether the school could have prevented the harassment or reduced the extent of it.  It did not identify what steps the school might have taken to do this.  Hence, had the Employment Appeal Tribunal found any of the matters complained of to be sex discrimination it would have remitted the case for further consideration of this point.
39.	I would not have interfered with the employment tribunal’s conclusions on this point.  The tribunal correctly identified the “control” test in Burton.  It discussed in some detail the school’s reaction to conduct which the school knew had been continuing for some years.  It concluded that the school could and should have done more.  That must mean that had the school done so, the pupils’ treatment of the applicant would have improved.  This was a question of fact with which we should both be slow to interfere.
40.	No-one doubts that discipline in schools is a difficult and delicate matter.  School children can be very cruel, both to one another and to their teachers.  They are particularly likely to pick upon those whom they consider vulnerable.  If their perception is that their victims will not be protected by the school authorities they will intensify their attacks.  But it is the task of any school to create a climate in which unacceptable behaviour does not take place.  All schools must have policies in place to prevent bullying.  All schools should have policies in place to combat racist and sexist attitudes and behaviour amongst their pupils.  It is all about fostering an ethos in which such behaviour is not acceptable, as well as punishing specific incidents which are drawn to the school’s attention.  Ms Booth is right to say that this was not a case in which nothing was done: action was taken in respect of some specific incidents.  But the broader picture was not addressed as it would have been addressed had the school perceived it their duty to do so.  In my view the school’s reaction to the pupils’ conduct should have been the same as it should have been to any other sort of bullying and the employment tribunal was entitled to find that insufficient steps were taken to control the pupils’ behaviour.
Conclusions

41.
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 [1998] 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:
41.	We are considering the claim of a teacher for compensation under the Sex Discrimination Act 1975, arising out of a sustained campaign of homophobic abuse by pupils at the school, directed at her because she was a lesbian.  Any compensation would be paid by the Local Education Authority.
42.	The school is an inner city comprehensive.  At the relevant time, in any given year, there were some fifteen hundred pupils, aged from twelve to sixteen years in the early 1990s, and eleven to sixteen years in the mid 1990s.  From 1975 the appellant was employed as a science teacher.  From about 1991 until May 1995, girls and boys subjected her to verbal insult.  There was also an occasion when her coat was damaged on 1st March 1995, in the circumstances outlined in the judgment of Hale LJ.  
43.	I shall gratefully adopt Hale LJ’s narrative of the essential facts and analysis of the rival arguments, but at the outset, I must deal with Miss Laura Cox QC’s closing submission that the school was “institutionally homophobic”.  It should be emphasised that no member of the school staff or the governing body or the local education authority was involved in this unpleasantness.  It was confined to pupils, and it is perhaps fair to the vast majority of them to emphasise, confined to a small minority, who over several years addressed odious remarks to and at the applicant.
44.	We all know that bullying at school is not confined to physical violence, nor to fellow pupils or contemporaries.  I doubt if there is or ever has been any school at which pupils do not or did not behave unpleasantly from time to time, focusing attention on a teacher, or another pupil, who is sensed to be vulnerable, tormenting and mocking in precisely those areas in which the victim’s pain is likely to be most acute.  And I suspect that many adults can remember with a sense of guilty embarrassment, occasions at school when they were personally involved in, or lent sniggering support to, behaviour likely to undermine the confidence of an individual teacher.   None of it should happen, and in a perfect world it never would, either within the school premises, or indeed beyond its gates.  When it does, of itself that does not provide a sufficient reason for condemning the school as an institution.
45.	Miss Cox reminded us that the criticisms of the school and its headmaster were expressed by the Employment Tribunal in fairly robust terms.  There were presumably good educational reasons why the teacher herself did not confront her abusers.  She “reported” her complaints to others, for action to be taken.  There is evidence, treated somewhat disparagingly by the Employment Tribunal as “firefighting”, that following reports in which an individual pupil was positively identified as a perpetrator he or she was seen, and advised or admonished.  Despite the implied criticisms, on the whole this approach worked. There were very few occasions of repetition after an appropriate warning.  Certainly so far as the incident on 1st March was concerned, the five day suspension seemed to be effective.
46.	The Employment Tribunal’s criticisms of the school were largely based on the failure “to take any action which involved the whole school rather than just individual named pupils and to offer adequate support to the applicant either by changing her classes or by offering practical support in the way in which she handled her lessons”.  The headmaster was personally criticised for the way in which he approached and conducted the meeting on 30th January 1995, and what was described, without contradiction from the Employment Tribunal, as his “appalling” attitude.  The Employment Tribunal concluded that at that meeting on 30th January, the Headmaster appeared “to be unwilling to give a specific undertaking that by a particular date he would have tackled the question of homophobia either in an assembly or in the PSHE lessons or in some other way which was based on the school as a whole”.  
47.	The Headmaster’s major interest was the appellant’s return to work.  He was dismissive of her concerns, and plainly unsympathetic.  He advised her, “grit your teeth”, and told her that she could always “run away again” if she found it too difficult.  This rather old fashioned approach to the stress undergone by a teacher, with consequent time away from work, may appear over robust nowadays, and his comments were found by the Employment Tribunal to be inappropriate, suggesting a lack of sensitivity or understanding of the appellant’s predicament.    Nevertheless in the context of the allegation of “institutionalised homophobia”, the Employment Tribunal itself, whilst deprecating the headmaster’s attitude, did not characterise it, or him, as homophobic.  
48.	Much the same applies to the discussion on 16 May between the appellant and her new head of department.  She suggested that the appellant should either look for another job, or join the supply list.  The Employment Tribunal did not suggest that the head of department was expressing any more to the appellant than her genuine  belief about the available options, at any rate as they would have appeared to her if she rather than the appellant had been the target of such abuse.  Again therefore, even if the response may have been inappropriate, it does not merit, and the Employment Tribunal did not give it, the pejorative description of homophobia.  
49.	In my judgment there was no evidence of institutional homophobia at this school.  This was the least engaging of Miss Cox’s submissions, and in my judgment, although not critical to the outcome of the appeal, it should be rejected at the outset.
50.	S(1)(a) of The Sex Discrimination Act 1975 provides:
“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 ...”
51.	S5(3) provides:
“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.”
52.	The 1975 Act applies to adverse or less favourable treatment of a woman, “... on the ground of her sex ...”, that is, because she is a woman.  “Certain”, (but not all) “ ... kinds of sex discrimination ...” are rendered unlawful.  Men and women are entitled to equality of opportunity and treatment.  However wide and comprehensive in its scope (Jones v Tower Boot Co Limited [1997] IRLR 168 at 171; Abbey Life Assurance Co Limited v Tansell [2000] IRLR 387 at 390), the objective of the 1975 Act is equality of treatment, or more precisely, no less favourable treatment, therefore equally favourable treatment for men and women.  The legislation is apt to protect against discrimination whether directed against individual women, small sections or groups of women or women as a whole.  It does not however provide special, or more advantageous treatment for women than for men, nor for that matter, special advantageous treatment for particular groups of men or women.  In summary, save in the very limited respects permitted by the Act, more favourable treatment, whether for men or women, may create the very discrimination the Act was intended to eradicate. Unless the sex of the employee provides a genuine occupational qualification every employee must be treated on the basis of equality.  When it is alleged that an employer has failed in this obligation, the application of s5(3) involves comparing like with like, that is, so far as practicable, like men with like women. 
53.	As so much of the argument before us was directed to the issue of “sexual orientation”, it is noteworthy that the 1975 Act (and the claim is formulated on the basis of the Act) does not address sexual orientation.  Those express words are not used: nor are words which might possibly have that meaning: nor, indeed, are words used which can reasonably be treated as illustrative, or broad enough to encompass an inclusive construction of words which are omitted.  Its express purpose is to eliminate “certain kinds” of sex discrimination, subsequently defined in the Act.  The language is exhaustive, both as to liabilities as well as to rights.  As a discrete ground, “sexual orientation” is not included.  
54.	The essential question arising under the Act is whether this appellant was less favourably treated by the school authorities, on the ground of her sex, less favourably that is than they treated or would have treated a person of the opposite sex employed by them as a teacher, subjected by pupils to the “detriment” of homophobic abuse.  When answering this question, the relevant circumstances under s5(3) applying to this case require focus on the approach of the school authorities to the problems created for its employees by the pupils, and whether the appellant was treated differently to a male colleague faced with the same problem.  There are no male lesbians.  So the only men available for the comparison exercise required by s5(3) are male homosexuals.  There are however male homosexuals.  Like lesbians, they too are targeted and endure homophobic abuse.  When seeking the appropriate man or men for comparison purposes in the context of this particular case, those, as it seems to me, are the critical circumstances.
55.	The first critical feature of the present case is that we are here concerned with the insulting behaviour of pupils for whom the school was not vicariously responsible. Any discrimination or “detriment” was the direct result of the actions of third parties, pupils at the school, aimed by them at one of the teachers, an employee of the education authority.
56.	Ignoring for present purposes the specific finding that the incident on 1 March, which was properly dealt with, basing itself on the decision in Burton v De Vere Hotels [1996] IRLR 596, the Employment Tribunal concluded that the school authorities would have been liable to the appellant on the basis that it failed to take reasonable or appropriate steps to control the pupils.  
57.	In Burton, the Employment Appeal Tribunal was considering racially offensive remarks by an entertainer at a function organised by the Round Table in a local hotel, which did not employ or have any direct contractual arrangement with the entertainer.   Two of the waitresses working that evening were temporary or casual employees.  The hotel was held responsible on the basis that the waitresses were subjected to “the detriment of racial harassment” because the employer caused or permitted “the racial harassment to occur in circumstances in which he can control whether it happens or not”.
58.	Giving the judgment of the EAT, Smith J suggested that the issue should be decided by the Tribunal asking:
“... 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.” 
59.	For the purpose of testing whether the school authorities should be liable to the appellant under the 1975 Act, the nature of the “control” (to use Smith J’s word) which a school can exercise over its pupils is problematic.  At the risk of stating the obvious, schools are educational establishments. Disciplinary responsibility for the behaviour of children generally is shared by the teachers with the parents.  Given the inevitable involvement of parents (with all their differing attitudes) as well as the statutory obligations on the school to provide education for large numbers of children from different homes, the enforcement of school discipline for the benefit of individual teachers as well as the necessary fulfilment of the school’s obligations to all its pupils, predicate a much more subtle and complicated mechanism than that implied by the word “control”, at any rate in its every day meaning.  The question whether the harassment complained of in any individual case could or should have been prevented or minimised by the school authorities, with a consequent finding that there was a contravention of the 1975 Act sounding in compensation, requires a practical analysis of all these considerations.  Unless the single word, “control”, is treated as providing a convenient shorthand way of expressing a very complex issue, its use in this case as if it were form of definition, having virtual statutory application, is liable to mislead.
60.	In company with the Employment Appeal Tribunal in this case, I readily admit to concern at what I can conveniently identify as the educational aspects of these problems.  Taking the Employment Tribunal’s criticism based on the failure to involve “... the whole school ...” as an example, on issues like these is it necessarily the right solution for the entire school to be addressed in assembly?  In this delicate area, one silly comment by a teenage boy or girl, out of sight of members of the staff, might convulse a large section of the assembled pupils, with tittering and barely controlled mirth, forcing the assembly to an undignified end.  Again, some parents, particularly those of the younger children at the school, might have serious, and understandable, reservations about discussions relating to sexual orientation in open assembly.  The delicacy of these subjects is obvious.  Some parents would prefer, and strongly prefer, to deal with them, with their own children, at home.  As to practical support and changing classes, I cannot discern from the reasoning of the Employment Tribunal, how changing the appellant’s class would have brought this nastiness by pupils to an end.  It continued outside as well as within the school, and the appellant did not suggest that the perpetrators were confined to children in her class.  The reference to practical support in the way she “... handled her lessons ...” is unspecific.  The appellant was, at all material times, a very experienced teacher.  Schools are not and were not then awash with the resources, or teachers, particularly science teachers, not already fully committed to their own teaching timetables.  The Employment Tribunal did not acknowledge the potential dilemma that if the appellant had been given “support” in the classroom itself, this step may very well have exacerbated the problem by highlighting it, giving those pupils behaving in this unseemly way the satisfaction of discovering that the appellant was unable to handle it for herself. 
61.	The essential educational message, to be conveyed both by the school, and hopefully supported by the parents at home, was surely that teachers, whether male or female, are to be treated with the same proper level of respect due to them both as teachers and as individuals.  Abuse and insult (whatever manifestations, or causes, they may take) are always unacceptable and, as employees, all member of school staff who suffer abuse in any form are entitled to the same equal level of protection from it by an effective disciplinary system.  Rather than treating sexual orientation as if the problems to which it can give rise fall into a unique category, every area of discrimination and prejudice, including racial or religious or sexual prejudice, require attention as part of the process of education in its broadest sense.  The principles of personal autonomy and mutual toleration, although fundamental to the life of a civilised community, are not susceptible to inculcation by rote, and even if appropriate lessons are provided at school, their effect can be dissipated without support from home.  Considerations like these make it difficult to equate the process of education with the sort of “control” a hotel can exercise over its customers, and the behaviour of an entertainer they have chosen to employ.  In my judgment the reservations of the Employment Appeal Tribunal, described by Burton J, were fully justified.
62.	This leads me to the heart of Miss Cox’s submission, relying on Strathclyde v Porchelli [1986] IRLR 134, that it was the choice of language used by the pupils that brings this case within the ambit of the 1975 Act.  We were supplied with a lengthy list of insulting terms which are applied exclusively to “gay” men and to “gay” women, and indiscriminately to both gay men and women.  None needs repetition.  From this material it is clear that the language directed at the appellant was invariably based on insulting words which identified her as a lesbian, and which would not be applied to a homosexual male.  Accordingly Miss Cox suggested that the crucial ingredient in the process was the applicant’s gender.  She was insulted in language applicable to a woman.  
63.	Numerous authorities were cited in the written submissions.  In deference to the refined and subtle arguments advanced on each side, and out of respect to some of the issues raised in Hale LJ’s judgment, it seems necessary to refer to the leading authorities which bear on the issue of sex/sexual orientation.  In doing so, I do not intend to obfuscate what I believe to be the central question for decision.
64.	The starting point is the decision of the House of  Lords in James v Eastleigh Borough Council [1990] 2 AC 751, and the observations of Lord Goff after he had reconsidered the speech expressing the unanimous opinion of the House of Lords he had delivered in R v Birmingham City Council, ex parte Equal Opportunities Commission [1989] AC 115.  Although specifically concerned with the question of motive or intention in relation to adverse treatment on the ground of sex, he said, at 773
“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.”
65.	Although these observations were confined to cases of direct discrimination, rather than indirect discrimination under s1(1)(b), Lord Goff’s analysis of the relevant principles was followed by this court in Smith v Gardner Merchant Limited [1998] IRLR 514.  After a homosexual male employee had been dismissed following a complaint of aggressive behaviour by another (female) employee, he contended that he had been harassed on the basis of his homosexual orientation.  
66.	Having acknowledged the view that there was a difference between discrimination “... on the ground of sex and discrimination on the ground of sexual orientation ...”, Ward LJ continued, at p515, paragraph 39
“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”
67.	He went on to identify what he described as the wrong question, 
“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”.
68.	Sir Christopher Slade suggested, at p518, paragraph 69, that 
“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.”
69.	Sir Christopher went on to acknowledge:
“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.”
70.	The construction of s1(1)(a) of the 1975 Act adopted by the majority is binding on this court.  On closer examination, and at any rate certainly in part of his judgment, Beldam LJ appears to agree with them.  He considered that in the particular circumstances the sexual orientation of the applicant was irrelevant.  
“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”.
71.	This distinction between discrimination on the grounds of sex and sexual orientation was not new.  In R v Ministry of Defence, ex parte Smith [1996] QB 517, in the context of the Council Directive 1976 
“... 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”.
72.	In the Court of Appeal, at 560, Sir Thomas Bingham MR said:
“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.”
73.	Thorpe LJ, at p565, considered that 
“... 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.”
74.	This distinction was also followed by the European Court of Justice in Grant v South West Trains [1998] ICR 449.  The principle of equal pay for men and women established by Article 117 of the EU Treaty, in the context of the refusal of a travel pass to a female clerical worker for her female partner, was considered.  The court rejected the submission that differences of treatment
“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)
75.	The same distinction has been supported by the decision of the Inner House of the Court of Session on appeal from the EAT in Secretary of State for Defence v McDonald, unreported, 1 June 2001.  The judgments unanimously agree that the 1975 Act is not concerned with discrimination on the ground of sexual orientation.  In the Act “sex” refers to gender.  The majority (Lord Kirkwood and Lord Caplan) also agreed that for the purposes of the 1975 Act, such discrimination would not amount to sex discrimination.  In short, the domestic authority which binds us (Smith v Gardner Merchant) was not criticised, nor distinguished by the majority view in the Inner House in Scotland, where the identical legislation was under consideration, and Smith v Gardner Merchant was expressly considered.
76.	The authorities, like the legislation, are clear.  If the abuse inflicted on the appellant by the pupils amounted to discrimination on the ground of her sexual orientation, not her sex, it falls outside the ambit of the 1975 Act.
77.	I must next briefly address the argument that this court is liberated from the restrictive effect of earlier authorities, and indeed the statutory language of the 1975 Act, as interpreted in those authorities, as a result of the implementation of the Human Rights Act 1998.  The view of this court in J A Pye (Oxford) Limited v Graham & Another [2001] 2 WLR 1293 was that s3(1) of the 1998 Act has retrospective effect: the same approach was adopted in Scotland in  Secretary of State v McDonald.  All these observations were obiter.  Sir Andrew Morritt, Vice Chancellor, in Wilson v First County Trust Limited [2 May 2001] 3 WLR 422 at paragraphs 20 and 21 expressed a contrary view:
“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.”
78.	That approach has recently been expressly approved in the House of Lords in R v Lambert, 5 July 2001 (2001) UK HL 37.  I shall not repeat the relevant passages from the opinions cited by Hale LJ.  Lord Clyde, at paragraph 142, summarised what I believe to have been the conclusion of the majority in the House of Lords:
“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.”
79.	Lambert was concerned with the safety of a criminal conviction rather than a claim for compensation for a civil wrong.  It would be astonishing if the retrospectivity argument deployed in that case, having failed in the context of an appeal against conviction, were nevertheless held to be available to sustain a civil claim, or that this issue should be resolved less favourably to an individual convicted of crime than to one seeking damages.  In any event however the approach of the Vice Chancellor in Wilson, and its approval in Lambert, and the judgment of Hale LJ demonstrate that for the purposes of this appeal the retrospectivity argument must be rejected. 
80.	The result is that any further observations which seek to answer the question whether there would have been a different result to this appeal if the retrospectivity argument had been accepted are unnecessary for the decision.  As Hale LJ accepts, her observations on this subject are obiter.  It is therefore sufficient for present purposes to indicate that before the decision in Lambert was available, I had prepared a draft judgment dealing in detail with this issue which led me to a different conclusion.  In the result, I do not believe that it would be helpful to hand down another obiter, probably contradictory judgment on this point.  I shall simply record that at present I am unpersuaded that Hale LJ’s views on this issue are correct.
81.	The very interesting discussion of questions relating to sexual orientation, the possible application of the 1998 Act, and its impact in the field of discrimination, and employment, and indeed Convention rights, can distract attention from the issue actually under consideration in this appeal, which is whether the school authorities are liable to the appellant for the harassment she endured at the hands of the pupils, in particular, whether they discriminated against her or treated her less favourably than they would have treated a man.  Liability does not arise simply because it is established that the school authorities were less understanding and organised, or indeed less alert to contemporary attitudes to issues of sexual orientation, but depends rather on whether their approach to the problem (whether this merited approval or criticism) was less favourable to the appellant than it would have been to a male teacher, in the same position, facing the same problems.
82.	Despite her detailed analysis of the authorities, in the end Miss Cox was unable to persuade me that it was possible to infer from the words chosen to abuse the applicant that she would not have been harassed if she had been a man.  The trigger of the nastiness, and its target, was not the appellant’s sex, but the perception of her sexual orientation.  In short she was not abused because she was a woman, but rather, because she was or was believed to be a lesbian:  her harassment resulted from her sexual orientation, or the perception of it.  The logical consequence of the argument based on the actual words used by her abusers would be that if the pupils had chosen to apply epithets which can be directed against both men and women homosexuals, such as “gay” or “queer”, perhaps embellished with an unpleasant and distressing epithet, or even, with equal unpleasantness, but greater ignorance, words which are normally thought to apply to homosexual men, the claim would fail.  In reality there is nothing to suggest that apart from the actual words of abuse a male homosexual teacher, otherwise identical in character and experience with the appellant, would have been treated any differently by the pupils.
83.	Be that as it may, crucially, in the context of abuse by pupils, for whom the school authorities were not vicariously responsible, their attitude and response would have been identical.  I cannot imagine it being suggested that the headmaster would not have said to a man facing the same unpleasantness, or indeed a teacher of either sex subjected to different manifestations of unpleasant abuse, precisely what he said to the appellant, that he should “grit his teeth”.  The course actually adopted by the school authorities in the face of this problem was not different, or even marginally less favourable to the appellant, than the course which would have been adopted to deal with identical harassment directed at a homosexual male.  Indeed the Employment Tribunal itself expressly found that:
“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.”
84.	The fault found against the school authorities depended on the inadequate way the issue of harassment and abuse of the appellant by the pupils was dealt with and addressed. That was not a sufficient basis for a successful claim by her under the 1975 Act.  Despite the criticisms found by the Employment Tribunal, the appellant failed to establish that she was less favourably treated by the school authorities than she would have been if she had been male.
85.	In my judgment this appeal should be dismissed.
Lord Justice Henry:
86.	I agree that this appeal should be dismissed.  The case is indistinguishable from Smith -v- Gardner-Merchant Limited [1998] IRLR 514, which was binding upon this Court and upon the Tribunals at the relevant time.  I agree, for the reasons given by Hale LJ and Judge LJ, that the Human Rights Act, 1998 does not operate retrospectively in this case.  It is therefore unnecessary to express a view on whether the 1998 Act would lead to a different result in future.  It is also unnecessary to express a view upon whether the school had subjected Ms Pearce to a detriment.  I agree with what Judge LJ has said as to the inutility of conflicting obiter judgments.
87.	I agree with all Judge LJ has said on “... the educational aspects of these problems ...” from paragraphs 57 to 61 of his judgment.  I differ from Hale LJ on that topic to the extent that had the EAT allowed the appeal to the extent of concluding that there was discrimination on the grounds of sex, I believe they should here have remitted for further consideration by an Employment Tribunal the question whether the school subjected Ms Pearce to sex discrimination by reference to a proper consideration of Smith J’s test in Burton.
I.	I also agree with Judge LJ that the criticism of the school as “institutionally homophobic” was misplaced on the evidence.

ORDER: Respondents entitled to costs of this appeal. Leave to appeal refused. Stay of the enforcement of the order for costs granted until such time as the petition to the House of Lords has been considered by the Appeals Committee.
(Order does not form part of approved Judgment)