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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Secretary of State for Defence v MacDonald [2001] ScotCS 140 (1 June 2001)
URL: http://www.bailii.org/scot/cases/ScotCS/2001/140.html
Cite as: 2002 SC 1, [2002] ICR 174, [2001] ScotCS 140, [2001] IRLR 431, 2001 SCLR 795
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Prosser Lord Kirkwood Lord Caplan
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XA172/00 OPINION OF LORD PROSSER in APPEAL under section 37(1) of the Employment Tribunals Act 1996 against an Order and Judgment of the Employment Appeal Tribunal dated 19 and issued on 25 September 2000 by LYNDA CLARK, Q.C., M.P., Advocate General for Scotland on behalf of the SECRETARY OF STATE FOR DEFENCE Appellant; against RODERICK KENNETH WILLIAM MacDONALD Applicant and Respondent: _______ |
Act: Truscott, Q.C.; Robson McLean, W.S. (Appellant)
Alt: O'Neill, Q.C., Carmichael; Anderson Strathern, W.S. (Respondent)
1 June 2001
Introductory
[1] The applicant and respondent Roderick MacDonald was an officer in the Royal Air Force, having enlisted in 1989 and serving until his compulsory resignation which took effect on 28 March 1997. He had held the substantive rank of Flight Lieutenant since May 1996. Following upon his compulsory resignation, he made timeous application to the Industrial Tribunal, upon the basis inter alia that he had been discriminated against unlawfully, on the grounds of his sex, contrary to the Equal Treatment Directive 76/207/EEC and section 6 of the Sex Discrimination Act 1975 read with that Directive. After hearings in July and September 1999, his application was dismissed by the Employment Tribunal in December 1999. He appealed to the Employment Appeal Tribunal. On 19 September 2000 that Tribunal ordered that the appeal be allowed, and that a finding that Mr. MacDonald was discriminated against and that he was subjected to sexual harassment be substituted. The case was remitted to the same Employment Tribunal, to proceed in accordance with the judgment of the Appeal Tribunal.
[2] Paragraph 1032(1) of Queen's Regulations provides that "homosexuality, whether male or female, is considered incompatible with service in the Armed Forces...If individuals admit to being homosexual whilst serving and their CO judges that this admission is well-founded they will be required to leave the service." Subparagraph (2) provides that details of the Armed Forces' policy on homosexuality, together with guidance for COs on dealing with cases of homosexuality which come to their notice, are contained in AP3392 volume 5 leaflet 107. That leaflet states inter alia that for its purposes a homosexual is defined as "a person who is sexually attracted to a member of the same sex", and homosexuality is defined as "behaviour characterised by being sexually attracted to members of the same sex".
[3] These provisions applied during the period which led up to, and provide the explanation for, the applicant being required to leave the Royal Air Force. His homosexuality is not in dispute, and he had informed his commanding officer of it. The history of events which led up to that disclosure is dealt with in some detail by both the Employment Tribunal and the Employment Appeal Tribunal. An issue as to harassment arises in that connection, but I do not find it necessary to refer to that background at this stage.
Sex Discrimination Act, 1975
[4] The fundamental points at issue between the parties relate to the interpretation of the Sex Discrimination Act 1975. Sections 1 and 2 of the Act deal respectively with sex discrimination against women and sex discrimination against men. Section 1(1) provides inter alia that "A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if...on the ground of her sex he treats her less favourably than he treats or would treat a man...". Section 2(1) provides that "Section 1, and the provisions of Parts II and III relating to sex discrimination against women, are to be read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite."
[5] Section 5(2) provides that "woman" includes a female of any age, and that "man" includes a male of any age. Section 5(3) provides as follows:
"A comparison of the cases of persons of different sex...must be such that the relevant circumstances in the one case are the same, or not materially different in the other."
Section 6(2) provides inter alia that "It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her...(b) by dismissing her, or subjecting her to any other detriment." Section 6 is in Part II of the Act, and accordingly in terms of section 2(1) is to be read as applying equally to the treatment of men, having effect with such modifications as are requisite. It is not disputed that so read, and with the requisite modifications, section 6(2) applied so as to make it unlawful for the Royal Air Force, in the case of Mr. MacDonald, to discriminate against him by dismissing him or subjecting him to any other detriment. It is to be noted that in terms of section 5(1), references to "discrimination" refer to any discrimination falling within sections 1 to 4, whereas references to "sex discrimination" refer to any discrimination falling within sections 1 and 2, related expressions being construed accordingly. Unlawful discrimination under section 6(2) thus covers discrimination falling within sections 3 and 4 as well as sex discrimination falling within sections 1 or 2; but it is not disputed that in the present case one is concerned only with sex discrimination.
[6] In relation to the interpretation of the statute, I think that it is useful to mention a number of its provisions as illustrating how it uses the word "sex". It is not defined, or indeed used, in the interpretation section, section 82. The word "gender" is introduced in section 2(A), which was inserted in 1999, in the context of gender reassignment, but is not otherwise used in the Act. One may note the expressions "either sex" and "the same sex" in section 3, dealing with discrimination against married persons. A number of other expressions are worth noting. In section 7, which provides that certain parts of section 6 do not apply in certain circumstances, the expression "being a man" is used, with provisions that "being a man" is a "genuine occupational qualification" in various specified circumstances, including those where the job "needs to be held by a man to preserve decency or privacy" because of certain described considerations. One may also note elsewhere in the Act the expression "limited to one sex" in section 19, "single-sex establishment", "one sex only" and "the opposite sex" in section 26, "one sex only" in section 33, "persons of one sex" in section 34 and the provisions in Parts IV and V relating to the use in advertisements of "a job description with a sexual connotation (such as 'waiter', 'salesgirl', 'postman' or 'stewardess')" at section 38(3) and the reference to "a provision for conferring benefits on persons of one sex only (disregarding any benefits to persons of the opposite sex...) at section 43(2). The expression "both sexes" is also used, at section 79(6), although only in a paragraph which is to be substituted in another statute and the expression "the opposite sex" is also used in Schedule 4, paragraph 2(c).
Human Rights and Community Law
[7] The submissions of the parties in relation to the correct interpretation of the 1975 Act depended not only upon the language of the Act, but upon the question of whether and how the interpretation of the Act would or might be affected by the European Convention on Human Rights, and in particular Articles 8 and 14. Article 8(1) provides that "Everyone has the right to respect for his private and family life..." and Article 8(2) provides that there shall be no interference by a public authority with the exercise of this right, except in certain specified circumstances which are not said here to be in point. Article 14 is in the following terms:
"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."
[8] Submissions were made as to the possible effect of these provisions upon the interpretation of the 1975 Act having regard to various dates. It is to be noted that at the date when Mr. MacDonald was required to leave the Royal Air Force, in March 1997, the United Kingdom, although a party to the Convention, had not yet incorporated it into United Kingdom law. Despite the passing of the Human Rights Act 1998, and the Scotland Act 1998, that was still the position when this matter was before the Employment Tribunal in the latter half of 1999. It remained the position when the matter was before the Employment Appeal Tribunal in September 2000, although that Tribunal took into account the fact that the Human Rights Act 1998 would come into effect, as it did, on 2 October 2000. From the time of Mr. MacDonald's application onwards, reliance has been placed by him not only upon the terms of the 1975 Act, but upon the Convention and the case law of the European Commission and Court of Human Rights. Reliance has also been placed upon European Community law, and in particular Article 2(1) of the Equal Treatment Directive (76/207/EEC) that there be "no discrimination on the grounds of sex either directly or indirectly by reference in particular to marital or family status".
[9] The effect of the Convention upon the interpretation of United Kingdom statutes was of course the subject of judicial comment and guidance before the Human Rights Act 1998 came into force on 2 October 2000. The matter is now affected by the terms of that Act. Section 3(1) provides that "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." And subsection (2) provides inter alia that this section "(a) applies to primary legislation and subordinate legislation whenever enacted...".
[10] Certain provisions relating to the acts of public authorities are also in point. In section 6, subsection (1) provides that it is unlawful for a public authority to act in a way which is "incompatible with a Convention right"; but in terms of subsection (2)(b), subsection (1) does not apply to an act if "in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect to in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions." Subsection (1) of section 7 provides that a person who claims that a public authority has acted in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under the Act in the appropriate court or tribunal or "(b) rely on the Convention right or rights concerned in any legal proceedings" but only if he is a victim of the unlawful act. Subsection (6) defines "legal proceedings" as including both "proceedings brought by or at the instigation of a public authority" and "an appeal against the decision of a court or tribunal." Finally on this matter, it is to be noted that section 22(4) provides that 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 that "otherwise that subsection does not apply to an act taking place before the coming into force of that section."
[11] It is convenient to consider certain submissions which related to the Human Rights Act and the Convention, and indeed European community law, before turning to the 1975 Act itself and its application to the present case.
[12] On behalf of the appellant, counsel pointed out that we were dealing with a 1975 statute, that Mr. MacDonald's compulsory resignation occurred in 1997, and that the proceedings before both the Employment Tribunal and the Employment Appeal Tribunal were concluded before the relevant provisions of the Human Rights Act 1998 came into force, on 2 October 2000. It was submitted that in these circumstances, this court was not required, so far as it might be possible to do so, to read and give effect to the 1975 Act in a way which was compatible with Convention rights. To do so would result in different interpretations of that Act, depending upon when a particular case might reach a particular court. However, it is merely obvious that when a new requirement as to interpretation is introduced into the law, there will be some cases in which the new requirement is applicable, and others in which it is not. That may involve apparent absurdity or inequity. In this instance, it is provided by section 3(2) that the section applies to primary legislation, and subordinate legislation, "whenever enacted". Counsel for the appellant suggested no way in which we could get round these words. For my part I would not wish to: I see no apparent inequity or absurdity. But the words are unequivocal and I would respectfully agree with what was said by Mummery L.J. in J.A. Pye (Oxford) Limited v. Graham, unreported, 6 February 2001, in relation to section 3(1): "The principle of the interpretation of primary and secondary legislation contained in section 3 of the 1998 Act can be relied on in an appeal which is heard after that Act came into force, even though the appeal is against an order made by the court below before the Act came into force." I would also agree with the view expressed by Keene L.J. in that case, that subsection (1) applies 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".
[13] Counsel for the appellant advanced further submissions which turn upon sections 6, 7 and 22 of the 1998 Act. It was acknowledged that section 7(1)(b) applied to proceedings brought by or at the instigation of a public authority, in terms of section 22(4), "whenever the act in question took place". But section 22(4) provided that otherwise, subsection (1) did not apply if, as in the present case, the relevant act took place before the coming into force of section 7. And more particularly, it was submitted that paragraph 7(1)(b) did not apply, because the present proceedings were not "proceedings brought by or at the instigation of a public authority." It was submitted that the "proceedings" with which we were concerned were those initiated by Mr. MacDonald himself, when he applied to the Industrial Tribunal. It was not disputed that Mr. MacDonald would be a "victim" within the scope of section 7; but despite that fact, and his claim that the R.A.F. had acted in a way which was made unlawful by section 6(1), he was not entitled in terms of section 7(1)(b) to rely on any Convention right in the present legal proceedings, since these were not proceedings brought by or at the instigation of a public authority. Section 7(1)(b) was quite simply inapplicable. In these circumstances, and that being so, Mr. MacDonald lacked the entitlement conferred by that paragraph of that subsection to rely in any way on any of his Convention rights.
[14] In reply upon this point, counsel for Mr. MacDonald drew attention to the terms of section 7(6). The expression "legal proceedings" in section 7(1)(b) included not only proceedings brought by or at the instigation of a public authority, but also an appeal against the decision of a court or tribunal. The proceedings before this court were undoubtedly an appeal against the decision of a court or tribunal. But that appeal being an appeal taken by a public authority, it was properly to be regarded as falling within the expression "proceedings brought by or at the instigation of a public authority" in terms of section 7(6)(a). Perhaps more importantly, as I understood the argument, such an appeal taken by a public authority, and constituting "proceedings brought by or at the instigation of a public authority" for the purposes of section 7(6)(a), must also be regarded as constituting "proceedings brought by or at the instigation of a public authority" where that same expression is used in section 22(4).
[15] I am not persuaded that every "appeal against the decision of a court or tribunal" within the meaning of section 7(6)(b) must be regarded as also falling within section 7(6)(a) and constituting "proceedings brought by or at the instigation of a public authority". Paragraphs (a) and (b) of subsection (6) are evidently intended to cover two different situations. But if an appeal against the decision of a court or tribunal is an appeal by a public authority, it will properly be regarded as "proceedings brought by or at the instigation of a public authority" within paragraph (a) if the appeal itself can be regarded as proceedings brought by the authority rather than as a mere part of the proceedings originally initiated by, say, an application to a tribunal. One can perhaps argue the matter either way; but in my opinion the present appeal proceedings in the Court of Session can properly be distinguished from the proceedings before the Employment Tribunal and Employment Appeal Tribunal. And, in the whole circumstances, I think it is appropriate to see the present proceedings in that way, and to regard them as proceedings brought by a public authority. While I reach that view as a matter of construction, it appears to me to accord with the intended principle of these provisions: as the matter is put in the Current Law footnote to section 22(4), "the Act can be used defensively against public authorities with retrospective effect, however, it may not, it appears, be used offensively." If an applicant has been successful, as Mr. MacDonald has, before a Tribunal, and a public authority decides, with that decision standing against them, to bring the applicant before an Appeal Court, it appears to me sound in principle that the applicant who has thus been brought before an Appeal Court should in principle be entitled to use these provisions defensively, in seeking to uphold the decision which he has obtained in his favour. In the whole circumstances I am satisfied that section 7(1)(b) does apply in the present proceedings, by virtue of section 22(4); and that Mr. MacDonald is accordingly entitled in terms of section 7(1)(b) to rely on any of his Convention rights in these proceedings, it being undisputed that he claims that the Royal Air Force acted in a way made unlawful by section 6(1), and that he would be a victim of any such unlawful act.
[16] As regards European Community Law, emphasis was laid upon its status as an integral body of law in the field of sex discrimination; but it does not in my opinion provide any assistance in relation to the issues in this case.
Admitted breach of Respondent's Convention rights
[17] It is convenient at this stage, before turning to the substantive issues in the appeal, to mention one further matter. The final paragraph of the Employment Tribunal's Reasons is in the following terms:
"The tribunal has reached the decision that this application has to be dismissed with considerable regret. As the respondents readily acknowledged the applicant had a distinguished service career in the RAF. It was his own honesty that initiated the process that led to his discharge. He is not the first to have sought relief in respect of an enforced discharge from an Employment Tribunal and failed to obtain it. It is to be hoped that as a consequence of the respondent's announcement following the decision of the European Court of Human Rights in Smith and Grady he may be one of the last to find it necessary to seek relief in this way."
The Tribunal are there referring to a statement made by the Secretary of State for Defence (Hansard, Armed Forces ECHR, 12 January 2000, 287) acknowledging that the existing policy was not legally sustainable, that there was no longer a reason to deny homosexuals the opportunity of a career in the armed forces, and that it had been decided that it was right that the existing ban should be lifted. It is unnecessary to consider the terms of that statement, or indeed the Strasbourg decisions which made it necessary, in further detail. In this court, it was expressly acknowledged by counsel for the appellant that the Ministry of Defence had breached the respondent's rights under Article 8, in combination with Article 14, of the Convention. In the light of that admission, and the respondent's right to a remedy for that breach, it was not clear to us what practical reason there could be for the appellant insisting upon the merits of the present appeal. The question of law under the 1975 Act is of course a quite different one from that which arises in relation to Article 8. But it appeared that as between these parties, that point of law would be entirely academic if, in respect of the breach of Article 8, the respondent was entitled to a remedy which would make it unnecessary to seek any further remedy under the 1975 Act.
[18] When we initially raised the point, there appeared to be some uncertainty as to whether the remedies for breach of rights under Article 8 would come up to the level of remedies if the respondent were successful in his claim under the 1975 Act. However, towards the end of the proceedings, it appeared that counsel for the appellant was unable to suggest that there would be any difference in the principles of assessment to be applied, or in their practical effect if correctly applied. Given the admission that there was a breach of rights under Article 8, there would be no need for the respondent to have recourse to the Strasbourg court to establish that breach. And that being so, whatever procedures might be adopted, the only non-academic issue between the parties appeared to be what the Ministry of Defence should pay the respondent. I of course appreciate that even where the only issue between parties is quantum, it may be impossible to reach agreement. But if that is the only practical issue, expensive and time-consuming litigation in relation to one underlying legal issue, which is of no significance to the parties in the light of a concession on a different legal issue, requires explanation.
[19] We sought and have received a written explanation. As between the parties, it does not appear to me to reveal any reason for continuing to litigate upon the merits of the issue which arises under the 1975 Act. It goes on to say that "the Government as a whole is concerned that the decision of the Employment Appeal Tribunal should not go unchallenged, as it would have wide implications, far beyond those relating to the termination of the service of members of the armed forces on the grounds of homosexuality." Reference is made to ways in which the ruling could give rise to claims of other kinds, and it is said that there is a large and increasing number of cases awaiting the outcome of this appeal. Upon that basis it is said that the need for a ruling of the court in this case is far from academic.
[20] My own view is that if there are other cases which require a decision, then a decision should be obtained in a case where it is required. I do not myself regard it as suitable to use this case, in which the decision on the merits does not appear to me to have any practical significance, as a way of solving problems in other cases where the issue may be of significance. And having regard to the fact that the submissions to this court took the form of general submissions in law, with very little reference to the decision of the Employment Appeal Tribunal or its reasoning, the unsuitability of this case as a vehicle for resolution of other cases seemed to me to be all the more dubious. However, I think that despite the unsatisfactory background to the appeal, it is probably appropriate for us to consider and determine the issues which were in fact argued before us.
"Gender" and "sexual orientation"
[21] The submissions for both parties drew a distinction between "gender" and "sexual orientation". Difference of gender was taken as meaning simply the difference between male and female, and it is unnecessary to enter into the chromosomic or other basis for that basic distinction. While the word "gender" appears now to be preferred in many contexts, what one is talking about is what would otherwise be called the male sex and the female sex, and the simple categorisation of people as men or women. As regards sexual orientation, it was acknowledged by both parties, I think, that the matter was perhaps more complex, with a range of possibilities, rather than two simple categories. But for the purposes of the present case, the argument proceeded upon a simple division into two categories, homosexual and heterosexual, each having both males and females within it. If one is considering the two gender categories of male and female, each thus has within it two sub-categories, homosexual and heterosexual. (I refer later to an alternative approach to sub-categorisation which may be more appropriate).
[22] The word "orientation" might give rise to complication or confusion, but I do not think it need do so for present purposes. One may use that word (or other words such as preference, proclivity and the like) to describe what a person may want, and one may wish to distinguish that from actual conduct - what a person has done or will do. But I do not think that it was suggested by either side that anything turned upon that distinction in the present case. Furthermore, it was not suggested that anything turned upon the specific nature of any conduct which was relevant, either as actual conduct or as something which a person might, either in general or in particular circumstances, want to do. It thus matters not, in relation to the issues which arise in this case, whether one has in mind, say, some full form of sexual intercourse, or minor indications of affection or desire, or indeed unexpressed wishes or inclinations. (While the language of the existing policy and guidelines is not perhaps always clear or consistent in these respects, the fact that the submissions of parties did not go into such nice distinctions makes it unnecessary to have any regard to such distinctions or discrepancies as there may be in the policy and guidelines). For the sake of simplicity, I have found it convenient to use the word "partner" without feeling it necessary on each occasion to add qualifications to cover all the different possible forms of behaviour, or of general feelings or unexpressed thoughts or unrequited desires.
The meaning of "sex" in section 1(1)(a) of the 1975 Act
[23] By virtue of section 2 of the 1975 Act, section 1(1) may be read, for the purposes of the present case, as providing that a person discriminates against a man in any circumstances relevant for the purposes of any provision of the Act if "(a) on the ground of his sex he treats him less favourably than he treats or would treat a woman..." and the arguments of the parties centred upon the meaning to be given to the word "sex" in this context.
[24] On behalf of the appellant, the submission was that the word "sex" must be read as meaning "gender". So reading it, the Ministry of Defence had not treated the respondent less favourably, on the ground of his gender, than they treated or would treat a woman. It was submitted that in making the comparison provided for in terms of section 5(3), between the case of the respondent and the case of a woman, and in order to ensure that for the purposes of this comparison the relevant circumstances in the one case were the same, or not materially different in the other, one must consider the respondent not merely as a man, but as a homosexual, and that in order to meet the requirements of section 5(3) one must compare him not merely with a woman, but with a homosexual woman. Each was thus looked at not only as belonging in the category of male or female, but in the category of homosexual. Upon that basis, the respondent had not been treated less favourably than such a woman: they would be treated identically.
[25] On behalf of the respondent, it was submitted in the first place that the word "sex" should not be read as "gender". It was accepted that that was a possible meaning, and perhaps even the most natural reading. But it was submitted that there was an alternative possible meaning for the word "sex" in this context: it could be read as meaning "gender or sexual orientation". And that was the meaning which the court should adopt, in order to give this provision a meaning compatible with the rights conferred upon the respondent by Articles 8 and 14 of the Convention. While that argument was presented as the primary argument, it was argued in the alternative that even if the word "sex" were to be read as "gender", the respondent should still succeed, and the appeal should be refused. If that were the correct or unavoidable meaning, the comparison which had to be made, upon a correct application of section 5(3), must still take the form of envisaging a man and a woman in the same (or not materially different) circumstances as one another, and considering whether in those circumstances the man would be treated less favourably than the woman. In relation to the respondent, the critical circumstance was the involvement of a male partner: with a female partner he would have incurred no detriment. Envisaging that same circumstance in the case of a woman, it was clear that the respondent was indeed being treated less favourably than a woman. She would be allowed such a male partner, without the detrimental consequences which were imposed upon the respondent.
[26] I shall return in due course to the separate (and in my opinion crucial) issue concerning comparisons and section 5(3). And in considering whether the word "sex" is to be read as meaning merely gender, or as extending beyond gender to include sexual orientation, I am content to proceed, for the moment, upon the hypothesis that this provision would not be compatible with the relevant Convention rights unless "sex" has this extended meaning. But I find myself quite unable to give the word "sex" in this provision any meaning other than "gender".
[27] The meaning of the word "sex" can of course differ greatly according to its context. In many contexts it no doubt covers both gender and sexual orientation: that is indeed obvious, given that it is a correlative of such words as sexual, homosexual and heterosexual. Any general discussion or study of "sex" would no doubt cover questions of sexual orientation, and would not naturally be expected to be limited to mere questions of gender. But the word "sex" has the equally familiar and ordinary meaning of "gender" as is clear from expressions like "opposite sex", "same sex", "both sexes" or references to the male sex or the female sex. Along with these, the expression "his sex" or "her sex" will at least in all ordinary contexts be totally unambiguous. With or without the other sections in the Act which I have mentioned, I can see no basis at all for arguing that the words "her sex" in section 1(1)(a) have any other meaning. The issue is whether a woman, because she is a woman, is treated less favourably than a man, or vice versa in terms of section 2.
[28] The words "so far as it is possible to do so" in section 3(1) of the Human Rights Act 1998 are plainly very wide indeed. Odd though it may seem, a court is in my opinion required by this section to impose upon legislation meanings which were clearly never intended by Parliament when it chose the words which it used. And without actually so deciding, I am prepared to assume that if a particular reading appears possible looking at a particular provision in isolation, one might have to adopt that meaning, notwithstanding that it produced discrepancies or illogicalities when compared with other provisions, perhaps even in the same statute. But I do not find it necessary to consider what the limits of the expression are, or to look to such cases as Marleasing S.A. v. La Comercial International de Alimentacion S.A., Case - 106/89 [1990] E.E.C.R. I-4135, or Litster v. Forth Dry Dock and Estuary Engineering Limited [1990] 1 A.C. 456. The words "on the ground of her sex" are so closely tied in with the words "treats her less favourably than he treats or would treat a man" that I see no possibility of reading the provision as being concerned not only with the simple categories of male and female, but with a further subdivision into the sub-categories of homosexual and heterosexual. Even less do I find it possible to read the provision as bringing in that sub-categorisation of "sex" in the phrase "on the ground of her sex", while leaving the words "treat a man" unchanged, with no reference to, say, "a person of different sexual orientation". Counsel for the respondent referred us to a number of cases in which, under the influence of Human Rights considerations or otherwise, references to "sex" had been read as covering issues of sexual orientation. The contexts varied, and in general I do not find it necessary to refer to these cases, which do not seem to throw light on this particular context. I would respectfully agree with Lord Kirkwood's observations in regard to the cases of Smith and Grady and Salguerio da Silva Monta. It is perhaps appropriate to mention Vriend v. Alberta [1998] 1 S.C.R. 493, if only to say that in contrast to the view which was apparently taken in that case, I find it hard to see sexual orientation as a matter which one would expect the 1975 Act to deal with, even if overall that was a matter which one would expect United Kingdom legislation to have dealt with in some statute, having regard to the terms of the Convention. Of the other cases relied upon in this respect by counsel for the respondent, I would also mention Toonen v. Australia I.H.R.R. vol. 1, No. 3 (1994) 97, which in its result was perhaps the strongest case favouring the respondent's interpretation, but in which counsel for the respondent was not able to identify any ratio which could be applied in interpreting the 1975 Act. On the whole matter, I am satisfied that this statute, and in particular this provision, is concerned with gender, and not with sexual orientation. Section 3(1) of the 1998 Act does not in my opinion enable or oblige us to adopt any other reading. In this I am at one with your Lordships.
Section 5(3) of the 1975 Act: the problem of comparison
[29] I turn therefore to the fundamental dispute which remains between the parties. This turns not upon section 1(1)(a) of the 1975 Act, but upon section 5(3). Taking "sex" as meaning "gender", and submitting that section 1(1)(a) was simply not concerned with sexual orientation, counsel for the appellant did not of course contend that the words "a man" at the end of head (a) (or "a woman" in a case such as the present, by virtue of section 2) could be glossed by adding the words "of the same sexual orientation". The comparison was with the treatment of a member of the opposite sex, as such. One was concerned with whether a person of female (or male) gender was, on the ground of that gender, treated less favourably than a person of the opposite gender. No sub-categories were introduced by the terms of this provision. Nothing more could be read into section 1(1)(a).
[30] Correspondingly, when one came to section 5(3), I did not understand it to be suggested that the opening words - "A comparison of the cases of persons of different sex..." - entailed anything beyond a comparison between the man in question, as a man, with a woman, in the sense of any woman. But on coming to the expression "the relevant circumstances in the one case are the same...in the other" counsel for the appellant claimed that "sexual orientation" had to be brought back in. If one was concerned with a homosexual man, his homosexuality was a "relevant circumstance", and in comparing him with a homosexual woman, rather than any woman, it was submitted that one was merely ensuring that this relevant circumstance in his actual case was "the same" in her hypothetical case.
[31] The argument was not really analysed or elaborated in any way. But reliance was of course placed upon Smith v. Gardner Merchant Limited [1999] ICR 134 (C.A.), and in particular the observations of Ward L.J. at page 150. Reference was also made to Pearce v. Mayfield Secondary School [2000] I.C.R. 920, in which Smith v. Gardner Merchant Limited was applied, and which we understand is now under appeal. It is upon this submission that I find myself unable to agree with your Lordships.
[32] On behalf of the respondent, it was submitted that the conclusion which was reached upon this point by the majority of the court in Smith v. Gardner Merchant Limited was unsound. Counsel for the respondent relied upon the article by Robert Wintemute in [1977] 60 M.L.R. 334, and in particular the passage from that article, at page 347, quoted by Ward L.J. in Smith, at pages 149 to 150. Upon this matter, it was submitted that the opinion of Beldam L.J. was to be preferred. At page 159, his Lordship says this:
"...I think the argument directed to the sexual inclinations of an employee of the opposite sex is misplaced and irrelevant. Moreover, it being conceded that discriminatory treatment of a person on grounds of sexual orientation does not amount to discrimination on ground of sex, I do not 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 comparison is made."
What section 5(3) required was a comparison with a person of the opposite sex, regardless of any question of sexual orientation in the same circumstances. "The same circumstances" meant the same factual circumstances. If one was concerned with a man who had or wanted a male partner, it was that circumstance - having or wanting a male partner - which must be built into the hypothetical circumstances in which one considered how a woman would be treated. The circumstance of a woman having or wanting a female partner was quite simply not the "the same" circumstance as the circumstance of a man such as the respondent having or wanting a male partner. One might call the circumstances analogous but that was not what section 5(3) required.
[33] In my opinion that submission is sound. I am satisfied that the reasoning of Mr. Wintemute and of Beldam L.J. is to be preferred to that of Ward L.J. and Sir Christopher Slade in Smith. Having read your Lordships' opinions, I regret that in this respect I am unpersuaded. The approach adopted by the majority in Smith, and followed by your Lordships, in my opinion involves an unjustified gloss upon the words of section 5(3). And in consequence comparison is made with a woman in circumstances which may broadly be seen as analogous, or equivalent, or indeed comparable, or the same mutatis mutandis, but which are not "the same or not materially different". The reasons for adopting that approach are not clear to me, and I can only try to explain my own understanding of the matter.
[34] In my view, care must be taken to distinguish between directly descriptive terms on the one hand, and words which have a cross-referential or reflexive or additional element contained within them. (It may be that the differences of opinion or analysis which have emerged in this field result from different approaches or responses to this kind of problem). In addition, before considering what may be the appropriate comparison for the purposes of the 1975 Act, I think that it is worth noting that apart from statute, a number of different comparisons will be possible in any one case, with no one comparison being the only or "right" one. Thus, the fact that a homosexual person of either sex is perhaps being treated unfairly by comparison with a heterosexual person of either sex, in the context of a basic categorisation by orientation rather than by gender, does not exclude the possibility that in the context of the other basic categorisation, by gender, there may also be discrimination, on the ground of gender, in the same factual circumstances.
[35] In a commercial context, or in a body such as the police, or indeed in the perhaps calmer context of a bridge club, questions might arise as to who may partner whom in a given context. If an individual X, of known gender, asks the relevant authority whether he/she may take Y as his/her partner for the activity in question, the permission might be dependent on the authority being informed of Y's gender. The authority might have a rule either that only same-sex pairs were allowed, or that only mixed-sex pairs were allowed. Equally, of course, one might start with the gender of Y being known, and X applying for permission to be Y's partner for the activity in question, without having disclosed his/her own gender. With rules such as I have described, the decision of the authority might depend upon disclosure of X's gender, with permission being granted or refused depending upon that gender. In such cases, with a person of one gender being granted permission and a person of the other gender being refused permission, one would in my opinion have the kind of factual circumstances in which it could not be denied (all else being equal) that a refusal was on ground of gender. And in my opinion, that would be so regardless of the reasons or explanation for X wishing to be partnered with Y in the particular activity, and indeed regardless of whether the authority applied its same-sex or mixed-sex rules in the same way to men and women. It would also be so regardless of whether X's wishes or conduct were specifically related to Y or reflected a general preference for partners of Y's gender.
[36] In my opinion, the analogy between these non-legal examples and a case such as the present is useful. Whatever the Royal Air Force's reasons for taking notice of the wishes or conduct of serving officers in relation to sexual matters, the fact is that under the policy in question they did so. If a male officer X wished or had a partner Y, and indeed if a female officer Z wished or had that same partner Y, the Royal Air Force would require to know the gender of Y before it could say whether that was an acceptable partner for X or an acceptable partner for Z. However one describes the policy, they would in fact discriminate between X and Z on the basis of the male gender of X and the female gender of Z, and in each case on the basis of whether Y's gender related to X's or Z's by being the same or the opposite. The use of general or abstract terms such as "orientation" or "homosexuality" does not alter the factual circumstances to which the policy applies. In deciding how to treat any individual, those who apply the policy are concerned with the gender of that individual and any partner; and nothing else appears to me to be relevant.
[37] In my opinion, in the context of section 1(1)(a), and reading "sex" as "gender", the actual discrimination in treatment is quite simply on ground of gender. (It is true that in the non-statutory context of categorisation according to sexual orientation, there would upon the same facts be discrimination on the basis of such orientation. But that does not negate gender discrimination). Within the statutory context, the "same" circumstances referred to in section 5(3) must be actually the same, in direct objective or descriptive terms. If one is faced with a man wanting or having a partner of a given gender, a comparison must in my opinion be with a woman having or wanting the same - a partner of that same gender. In my opinion, one is no more concerned with underlying preferences or proclivities than one is concerned with the proclivities of a thief in relation to theft: the law against theft is directed against all, not selectively against those who have a proclivity to theft. And while rules in relation to partners may in different contexts favour either pairs of one sex or mixed pairs, the fact that a decision depends critically on discovering the actual gender of each partner must not be masked by the use of such referential terms as "like" or "mixed", "same" or "opposite". If one considers not merely an individual's wishes and conduct in a specific situation, but his or her general wishes or conduct (as I do not think one should) the position is in my opinion the same. Such general wishes or conduct - or "orientation" if one is to use that word - consist in being attracted sexually by people of one gender or the other. 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 these same facts.
[38] I see certain broader considerations as in point. First, if "sexual orientation" is to be taken as the basis for any comparison or general statement or categorisation, the selection of "heterosexual" and "homosexual" to describe two categories running across both genders appears to me to be of doubtful value in any circumstances, but positively wrong in the context of the 1975 Act. Even in this metaphorical use, "orientation" seems to me to be concerned with direction. Those who face or are drawn in the same direction, or towards the same pole, may properly be said to have the same orientation. If one wants categories of sexual orientation, those who are drawn to males may be seen as one category, and those who are drawn to females may be seen as another. In any such categorisation, the gender of those who are drawn in the same direction will be irrelevant and need not be known. Their preferences are either male-oriented or female-oriented. The words "heterosexual" and "homosexual" are no doubt useful in many contexts. But I am wholly unpersuaded that a woman being attracted by a woman is in any real sense the "same" as a man being attracted by a man. If "orientation" is seen as being in point, for any purpose, it should in my opinion be used for comparing, and grouping together, those who (whether heterosexually or homosexually) are attracted by the same sex.
[39] Secondly, 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 or heteroethnicity. These are not extra circumstances. Similarly in a situation such as the present, it appears to me that one must consider whether the man and the hypothetical woman are in fact being allowed to do the same thing. To say that they are allowed, or not allowed, to do some equivalent or analogous thing is in my opinion to import a test which is not that required by section 5(3). Indeed, 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.
[40] The Act is careful to provide exceptions in certain circumstances. But apart from these, the idea seems to me to be that a woman should be allowed to go precisely where a man goes, and to do what a man does, and not to be fobbed off by being told that, mutatis mutandis, she has some equivalent for what is permitted to him. As I read the provisions with which we are concerned, and in particular the word "same" in section 5(3), the position is really very simple. If a person of one gender wants to do something which persons of the other gender are allowed to do, the fact of their own gender is not to be seen as a ground for being treated less favourably, and being denied a specific choice which would be open to a person of the other gender. And if the conduct in question involves someone else, then again that person's gender, whether the same or the opposite, should not lead to a difference in treatment.
[41] In considering section 5(3), I have not thus far had regard to either the Convention or the Human Rights Act 1998. However, if that subsection is open to construction, and if (as your Lordships hold) it can be read as requiring that in a case such as Mr. MacDonald's the comparison is to be made with a homosexual woman seeking or having a female partner, I would feel obliged by the Convention and the Act to reject that alternative interpretation. If the interpretation and application of the section which I regard as correct are even possible we are in my opinion obliged to adopt them. (I would observe that that is not a matter which the court required to consider in Smith v. Gardner Merchant Limited). My own conclusion does not however depend in any way upon the Convention or the 1998 Act.
[39] In these circumstances, although for reasons different from those relied upon by the Employment Appeal Tribunal, I would refuse the appeal.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Prosser Lord Kirkwood Lord Caplan
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XA172/00 OPINION OF LORD KIRKWOOD in APPEAL under section 37(1) of the Employment Tribunals Act 1996 against an Order and Judgment of the Employment Appeal Tribunal dated 19 and issued on 25 September 2000 by LYNDA CLARK, Q.C., M.P., Advocate General for Scotland on behalf of the SECRETARY OF STATE FOR DEFENCE Appellant; against RODERICK KENNETH WILLIAM MacDONALD Applicant and Respondent: _______ |
Act: Truscott, Q.C.; Robson McLean, W.S. (Appellant)
Alt: O'Neill, Q.C., Carmichael; nderson Strathern, W.S. (Respondent)
1 June 2001
[1] Your Lordship in the chair has set out fully the facts of the case and the submissions of the parties and in the circumstances I can state the conclusion which I have reached, and the reasons therefor, quite briefly.
[2] It is, in my opinion, important at the outset to recognise that counsel for the appellant accepted that the Ministry of Defence, by requiring the respondent to resign after he had declared that he was a homosexual, had acted in breach of Article 8 of the Human Rights Convention, taken along with Article 14, and conceded that the respondent will be entitled to compensation in respect of that breach. The quite separate issue before us is whether the Ministry also acted in contravention of sections 1 and 6 of the Sex Discrimination Act 1975.
[3] Section 1(1) of the Act, as applied by section 2(1), effectively provides as follows:
"(1) A person discriminates against a (man) in any circumstances relevant for the purposes of any provision of this Act if -
(a) on the ground of (his) sex he treats (him) less favourably than he treats
or would treat a (woman)..."
Section 6(2) of the Act, as read with section 2(1), provides that it is unlawful for a person, in the case of a (man) employed by him at an establishment in Great Britain, to discriminate against (him) - (b) by dismissing (him).
[4] I should say at this stage that I agree with your Lordship in the chair that, once it was admitted on behalf of the appellant that there had been a breach of the respondent's rights under Article 8, and that he was entitled to compensation therefor, an explanation was required as to why it was necessary for the present appeal to proceed as it was far from clear that it would serve any useful purpose. In relation to the written explanation which we received I agree with the observations of your Lordship and, despite the unsatisfactory background to the appeal, I share the view that we should consider and determine the issues which have been fully argued before us.
[5] It is accepted that the effect of sections 1, 2 and 6(2) of the Act is to make it unlawful for the Royal Air Force to discriminate against the respondent by forcing him to resign from their service on the ground of his "sex". The first issue between the parties is whether the word "sex" in its context in the 1975 Act relates only to gender or whether it also includes sexual orientation. Your Lordship in the chair has set out a number of the provisions in the 1975 Act which illustrate how the word "sex" is used. The Act does not contain any definition of the word and, in particular, it is nowhere stated that "sex" includes sexual orientation. Having considered the wording of the 1975 Act I have no doubt that, on a proper construction of the statutory provisions, the word "sex", particularly in sections 1 and 2, refers to gender and does not include sexual orientation, and that is the construction which has been placed on the wording of the Act by the English courts (Smith v. Gardner Merchant Limited [1999] ICR 134; Pearce v. Governing Body of Mayfield Secondary School [2000] I.C.R. 920). In my opinion the reference in section 1(1) to treatment "on the ground of...sex" is restricted to discrimination on the basis of gender and does not include discrimination on the ground of sexual orientation. Having regard to the context in which the word "sex" is used in the Act I take the view that the meaning of the word, as being restricted to gender, and not covering sexual orientation, is plain and unambiguous.
[6] In T, Petitioner 1997 S.L.T. 724 Lord President Hope observed as follows (at pages 733-4):
"It is now clearly established as part of the law of England and Wales, as a result of decisions in the House of Lords, that in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, the court will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it...In my opinion the courts in Scotland should apply the same presumption as that described by Lord Bridge, namely that, when legislation is found to be ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, Parliament is to be presumed to have legislated in conformity with the Convention, not in conflict with it."
[7] The Employment Appeal Tribunal found the word 'sex', as used in the 1975 Act, to be ambiguous. It reached the conclusion that there is a statutory ambiguity in that the meaning of the word "sex" could be confined to gender but was also capable of including both gender and sexual orientation. It referred to the Oxford University Dictionary (1989 edition) which inter alia includes a definition under the word "sex" of 'a third sex' which, according to the tribunal, refers to homosexuality in both men and women, and concluded that, since the word "sex" can obviously mean "gender", then "an obvious ambiguity arises on the face of the record". I do not agree. In my opinion, having regard to the context in which the word "sex" is used in sections 1 and 2 of, and elsewhere in, the 1975 Act it clearly and unambiguously relates only to gender discrimination and is not capable of being interpreted as including discrimination on the ground of sexual orientation. In relation to the question of ambiguity the Employment Appeal Tribunal also founded on the cases of Smith and Grady v. United Kingdom (1999) 29 EHRR 493 and Salguerio da Silva Mouta v. Portugal (2001) Fam LR 2 and observed that in both cases "sex" had been interpreted as including sexual orientation, indirectly in Smith and Grady and directly in Salguerio's case by the European Court of Human Rights. Article 8(1) of the Convention, in so far as relevant, provides as follows: "Everyone has the right to respect for his private...life". Article 14 reads as follows:
"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 Smith and Grady it was held that the investigations by the military police into the applicants' homosexuality, and their consequent administrative discharge on the sole ground of their sexual orientation, both constituted interferences with the applicants' right to respect for their private lives and that there had been a violation of Article 8. So far as Article 14 was concerned, the court considered that the applicants' complaint under that Article, in conjunction with Article 8, did not give rise to any separate issue. The court did not make a specific finding that the word "sex" in Article 14 included sexual orientation.
[8] In the case of Salguerio da Silva Mouta the Lisbon Court of Appeal had granted the applicant's ex-wife, rather than the applicant, parental authority over their daughter, and the applicant alleged that the decision had been taken purely on the ground of his sexual orientation as he was a homosexual and lived with another man. The applicant regarded this as a violation of Article 8 of the Convention, taken in isolation and in conjunction with Article 14. The court concluded that the applicant and his ex-wife had been treated differently on the basis of the applicant's sexual orientation, and observed that that was a "concept which is undoubtedly covered by Article 14 of the Convention". Article 14 refers to "sex" and "other status". However, the court pointed out that "the list in that provision is indicative and not limitative, as is evident from the phrase "any ground such as". What is, in my opinion, significant is that while the court held that there had been discrimination within the meaning of Article 14, it did not state that the word "sex" included sexual orientation. It follows, in my view, that the Employment Appeal Tribunal placed too much weight on the decision in Salguerio's case and, in particular, were wrong to conclude, as they did, that the European Court of Human Rights had "now expressly included sexual orientation in the definition of the word 'sex' as found in their convention". In my opinion, the Employment Appeal Tribunal was not justified in holding that an "obvious ambiguity" had arisen in relation to the interpretation to be given to the word "sex" in the 1975 Act and that the word as used in the Act could mean gender or sexual orientation.
[9] The next question which arises relates to the effect of section 3(1) of the Human Rights Act 1998 which came into force on 2 October 2000, a few days after the Employment Appeal Tribunal issued its decision in the present case.
[10] Section 3(1) is in the following terms:
"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 Convention rights".
In the first place, I consider that the respondent is entitled to seek to rely on the principle of interpretation set out in section 3(1) in this appeal even though the appeal is against an order made by the Employment Appeal Tribunal before the Act came into force (J.A. Pye (Oxford) Limited v. Graham, Court of Appeal, Civil Division, 6 February 2001, per Mummery L.J. and Keene L.J.). In my opinion, however, if the word "sex" in section 1(1) of the 1975 Act is read as meaning only gender, and does not include sexual orientation, such an interpretation is not incompatible with any Convention right. The Convention does not contain any free-standing right not to be discriminated against. While Article 14 has been held by the European Court of Human Rights to prohibit discrimination on the ground of sexual orientation, it does so only when taken along with one of the substantive rights and freedoms which are guaranteed under the Convention, and there is no Convention right or freedom which relates specifically to employment. Further, having regard to the context in which the word "sex" is used in section 1 of the Act I do not consider that it would be possible to construe the section as relating not only to male and female, but also to the sub-categories of heterosexual and homosexual. In this connection I note that the United Kingdom will soon be obliged to introduce legislation to prevent discrimination based on sexual orientation, and the legislation, following implementation by the European Commission of the Equal Treatment Framework Directive 2000 in accordance with Article 13 of the Treaty of Amsterdam, must be in place and in force by 2 September 2003, although the Directive does not apply to the nation's armed forces.
[11] On the disputed issue of interpretation I am satisfied, like both of your Lordships, that the 1975 Act, and in particular section 1 thereof, is concerned with gender and not with sexual orientation. That brings me to another important issue which remained in dispute between the parties and that was whether, on the assumption that the word "sex" in section 1(1)(a) meant gender, and did not include sexual orientation, the Ministry of Defence had nevertheless discriminated against the respondent on the ground of his gender. This question involves consideration of the terms of section 5(3) of the Act which is in the following terms:
"(3) A comparison of the cases of persons of different sex or marital status under section 1(1) or 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other".
The respondent, in the course of a vetting interview, declared that he was homosexual and as a result was required to resign from the Royal Air Force. At that time the Ministry's policy (which has since been altered) was that homosexuality, whether male or female, was considered incompatible with service in the armed forces. In the application of that policy a homosexual was defined as "a person who is sexually attracted to a member of the same sex". The respondent was forced to resign solely because he was a man who was sexually attracted to other men. In applying section 5(3) and determining the appropriate comparator, it is, in my opinion, important to compare like with like. So far as the respondent was concerned, he was a man and the relevant circumstances were that he was employed in the armed forces and was homosexual, that is, he was sexually attracted to persons of his own sex. It was that particular attribute, namely, his homosexuality, which led to his forced resignation from the armed forces, and accordingly his homosexuality was a very important circumstance to be taken into account in applying section 5(3). It is clear that the appropriate comparator would be a woman who is employed in the armed forces and in my opinion the appropriate comparator in this case is a homosexual woman, namely, a woman who is sexually attracted to members of her own sex. If the appropriate comparator is a homosexual woman, it is common ground that, in pursuance of the Ministry's then policy, she would similarly have been required to resign on the ground of her homosexuality, and in that event it must follow that the respondent has not been discriminated against on the ground of his gender. In my opinion the respondent was discriminated against on the ground of his sexual orientation and, as the 1975 Act does not relate to discrimination on that ground, it follows that the respondent was not discriminated against on the ground of his sex in terms of sections 1(1)(a) and 6(2) of the Act. Counsel for the respondent submitted that, for the purpose of applying section 5(3), the relevant circumstance was a sexual attraction to men, and that in determining the appropriate comparator only the sex of the comparator had to change, the other relevant circumstance or circumstances remaining the same. It therefore followed, it was said, that the proper comparator was a woman in the armed forces who was attracted to men, namely, a heterosexual woman. In support of this contention counsel referred to the judgment of Beldam L.J. in Smith v. Gardner Merchant Limited and an article by Robert Wintemute "Recognising New Kinds of Direct Sex Discrimination; Transsexualism, Sexual Orientation and Dress Codes" [1977] 60 M.L.R. 334. In my opinion, however, counsel's submission on this matter was not well founded and I have no hesitation in preferring the approach of Ward L.J. and Sir Christopher Slade in Smith v. Gardner Merchant Limited. Further, I cannot regard the selection of a homosexual woman as the appropriate comparator in terms of section 5(3) as being incompatible with any Convention right. I would only add that if the word "sex" in the 1975 Act did include sexual orientation then I consider that the appropriate comparator would be a heterosexual woman and that appears to have been the approach adopted by the Employment Appeal Tribunal in paragraph 28 of its decision.
[12] For the reasons which I have endeavoured to give I consider that the Employment Appeal Tribunal reached the wrong conclusion and that the respondent was not discriminated against on the ground of sex within the meaning of the 1975 Act. I would allow the appeal and restore the decision of the Employment Tribunal.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Prosser Lord Kirkwood Lord Caplan
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XA172/00 OPINION OF LORD CAPLAN in APPEAL under section 37(1) of the Employment Tribunals Act 1996 against an Order and Judgment of the Employment Appeal Tribunal dated 19 and issued on 25 September 2000 by LYNDA CLARK, Q.C., M.P., Advocate General for Scotland on behalf of the SECRETARY OF STATE FOR DEFENCE Appellant; against RODERICK KENNETH WILLIAM MacDONALD Applicant and Respondent: _______ |
Act: Truscott, Q.C.; Robson McLean, W.S. (Appellant)
Alt: O'Neill, Q.C., Carmichael; nderson Strathern, W.S. (Respondent)
1 June 2001
[1] I have had an opportunity to read and consider the Opinion of your Lordship in the chair. In so far as the Opinion sets out in detail the history of the case and the contentions advanced by the parties to the appeal, these have been very fully stated and since I have no quarrel with these matters, there is no need for me to re-state them. In my view the appeal gives rise to questions of some difficulty.
[2] The word "sex" can be used to denote a variety of meanings which are as regularly applied and understood as any word in the English language. Therefore I have no difficulty in agreeing with your Lordships that the reference in the Sex Discrimination Act 1975 to discrimination on the ground of sex was, on a literal construction of the Act, intended only to apply to discrimination based on gender and did not embrace discrimination arising from the more extended circumstances advanced by the respondent's counsel.
[3] That at least was the position prior to the coming into operation of the Human Rights Act 1998. In the 1975 Act the word "sex" is used in a number of contexts which could only have been intended to refer to biological differences between men and women - that is to say to gender. Thus there are references to "either sex" and "of the same sex" in section 3(1) and these are mainly illustrative of the other references which clearly apply to gender, some of which are quoted by your Lordship in the chair. The Act was clearly intended to strike at discriminatory practices based on differences in gender. It is perhaps interesting that although the Act equally covers discrimination against men and women the initial reference is to discrimination against women and in matters such as conditions of employment unequal treatment of women was undoubtedly seen as one of the principal mischiefs to be countered (although, of course, not the exclusive mischief). No doubt at the time the Act was enacted it was notorious that inequalities such as those I have mentioned formed the main focus of the legislation and it is very doubtful whether differences arising from sexual proclivities would have had anything to do with the introduction of the Act. However, it must be observed that the scope of the Act in relation to inequalities arising from gender was not restricted nor confined to specific circumstances. It can at least be said that the Act is apt to cover all instances of unlawful discrimination due to gender. Moreover, given the terms of the Act, I have no difficulty in holding that it is the objective circumstances of any action resulting in discrimination which counts and not the subjective intentions or motives of the discriminating party.
[4] The 1975 Act was in my view designed to place limitation on the unequal treatment of men and women such as would operate to the detriment of one sex or another. Moreover, the emphasis is on treatment by an employer in the workplace although discrimination in certain other areas of activity are also struck at. However, as far as the Industrial Tribunals are concerned they deal with situations arising from employment.
[5] Section 5 of the Act defines "discrimination" and in particular provides that a comparison of the cases of persons of different sex must be such that "the relevant circumstances in the one case are the same, or not materially different in the other". This definition about the comparison to be made to test equality of treatment is at the core of the issues in this case. Indeed, it is with regard to the application of section 5(3) that I must part company from your Lordship in the chair.
[6] The key issue is as to the comparison which requires to be made to test if there has been an unlawful discrimination founded on gender. In particular should a comparison be made between the treatment applied by the appellants to Mr. MacDonald and that which would have been applied to a female homosexual or should the comparison be between Mr. MacDonald's treatment and, on the other hand, that which would be applied to a female heterosexual? The attention has to be focused on "treatment" and this of course refers to treatment of an employee by an employer. The question within a particular factual situation is could it be said the employers would treat a woman more favourably than they have treated Mr. MacDonald. The quality of treatment can only be assessed if one envisages a man and a woman being exposed to the same factual circumstances - that is to say "the relevant circumstances" and the Act specifically enjoins this.
[7] The important background to this case is that in terms of paragraphs 1032(1) of the Queen's Regulations "homosexuality", whether male or female, is considered incompatible with service in the armed forces. There is substance in the view that socially, male and female homosexuality may not be exact equivalents and indeed society has in history sometimes treated them differently. However, it is clear from the terms of the regulation I have referred to that the policy of the Royal Air Force is to treat both kinds of homosexuality equally in that any kind of homosexuality was not to be tolerated. Whether or not that is a fit policy for this day and age is not the issue in this case. There is no doubt as to what the policy was. It is equally clear what prompted the Royal Air Force to treat both types of homosexuality as one. The common feature is to be found in the meaning of the term "homosexuality" and that is an inclination to form sexual relationships with members of the same sex. Thus, when his employers effectively dismissed Mr. MacDonald they did not do so because he was, for example, of the male gender. They prompted his resignation because they were satisfied that his sexual inclination was to have attachments to members of the same sex - other men. Thus, in my view, the fact that Mr. MacDonald may have been inclined to form sexual attachments with members of his own sex, is factually a relevant factor governing his employer's treatment of him. It was the gravamen of their complaint against him. It was not only "a relative circumstance" it was the "critical circumstance". Unless he had been a homosexual he would not have been urged to depart. Nor was their action merely motivated by a subjective view of the situation. It was prompted by a critical fact. The Air Force had an established policy that they could not tolerate homosexuality and the respondent had violated that policy. It was this which led to his leaving the Royal Air Force. In my view inequality of treatment can not be established without reference to the question of how a woman would be treated if she too had violated the same policy. The employers have meted out certain treatment to Mr. MacDonald because he had broken what they considered to be an important rule of behaviour. The question is would they have meted out the same treatment to a woman if she too was held to have broken that same rule? As it happens, because the rule is based on homosexuality - that is relationship with the same sex - any psychological or physical differences between the two types of homosexuality are not critical to the appellant's policy. The policy was applied to all homosexuals and it is a breach of that policy which is the circumstance relevant to any service person being asked to leave.
[8] Of course one incidental consequence of the rule against homosexuality is that the respondent in fact may have had less sexual freedom than a heterosexual woman in relation to other men. However, if it can be said that the heterosexual woman is being "treated" at all in relation to her sexual freedom, this treatment is of a different quality and prompted by different circumstances. Her position is not being "treated" in response to a breach by her of any rules or policy. She simply does not fall into the category of persons affected by that policy. The sexual freedom which the heterosexual woman enjoys to form attachments with other men is of course related to her gender, but it is difficult to see why that should be a circumstance relevant to the way in which the respondent was treated in the particular circumstances of his case. Any resultant inequality between the respondent and the heterosexual woman arises from the former's involvement in a prohibited sexual activity and not from differences in gender. In so far as the appellants impose a policy against homosexuality they treat men and women equally.
[9] One curious result of a different view would be that, if a heterosexual woman is a proper comparator then the situation of the homosexual woman becomes irrelevant. Thus, if the rules about homosexuality only extended to men and not to women service persons the position would be, on the face of it, that men were treated unfavourably compared to homosexual women. It is difficult to see why that situation could not be said to be an eminent relevant circumstance affecting the comparison of treatment between men and women.
[10] It follows from the above that my view of what has happened to the respondent is not as a result of discrimination founded on gender, such as is struck at by the 1975 Act. However, I have to proceed to consider whether the enactment of the Human Rights Act 1998 may have had an effect on the way in which the 1975 Act is to be construed and applied. Section 3(1) of the 1998 Act provides that primary and subordinate legislation must, in so far as it is possible to do so, be read and given effect to in a way which is compatible with Convention rights. Section 3(2) applies these principles to legislation "whenever enacted". In this matter I agree with the view of your Lordships (following Mummery L.J. and Keene L.J. in J.A. Pye (Oxford) Limited v. Graham). However, I find it difficult to see how section 3(1) will assist the respondent's case. The critical requirement for any introduction of the Convention is that there should be incompatibility with the Convention rights. The problem is, as I have indicated, the 1975 Act is merely concerned with unlawful inequality of treatment between men and women which is based on gender alone. In my view the 1975 Act in that respect is perfectly clear and does not lend itself to alternative constructions. In this case we are of course interested in the Act in the context of employment. It will be difficult in reading the 1975 Act to pinpoint where it is incompatible with the Convention. If it has deficiencies in relation to the Convention it may be that it does not deal with areas of discrimination which are separately definable from the issue of gender. However, I do not see the 1998 Act as requiring the insertion of omitted provisions so as to enhance the legislation under consideration. If there is a collision between that legislation and the Convention then one would look for a possible approach that may resolve the problem. However, that does not mean that omitted provisions should be added where no ambiguity exists and the scope of the Act is clearly not intended to deal with what is omitted. The incompatibility declaration is intended to apply to legislation which is contrary to a Convention provision.
[11] The respondent has based his case on the claim that he has suffered discrimination because of his sex under the Sex Discrimination Act 1975. Indeed this is what brings him into the tribunal system. It does not appear to be disputed that he has suffered what would be a violation of his rights under the Convention. However, if this will give rise to any claim then, for the reasons I have set out, it will not found a claim under the Sex Discrimination Act. The views I have arrived at are consistent with the views expressed by Lord Kirkwood in his opinion with which I agree. In particular I agree with his criticisms of the decision of the Employment Appeal Tribunal. It follows that the present appeal should succeed and that the original decision of the Employment Tribunal should be restored.