United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T KIBLING (of Counsel) Whitehead Woodward & Co 37 Bloom Street Manchester M1 3LY


 


MR JUSTICE BURTON: This is a preliminary hearing in the matter of Mr Gibson's application against British Gas Energy Centres Ltd , in which he brought claims under the Sex Discrimination Act and the Equal Treatment Directive and, also in Contract.

1. The Employment Tribunal reached the conclusion that his complaint, which is that he was treated differentially on the grounds of his being a homosexual, did not fall within the relevant provisions of the Sex Discrimination Act or the Equal Treatment Directive, because on the basis of decisions of the Employment Appeal Tribunal in Smith v Gardner Merchant Ltd and of the European Court in Grant v South West Claims Ltd, there were, as they saw it, binding conclusions of law that the question of sexual orientation was not covered in those provisions, which related to discrimination on grounds of sex or gender.
2. That conclusion is sought to be appealed by the Notice of Appeal dated 27 April 1998, whose validity is being effectively tested before us today.
3. Since the decision of the Employment Tribunal the law has moved on somewhat. It has moved on in the following ways.
4. First of all, Smith v Gardner Merchant Ltd has come to the Court of Appeal, reported now in [1998] IRLR p510 and the conclusion, to which I earlier referred, of the Employment Tribunal, based upon the decision of the Employment Appeal Tribunal in Smith v Gardner Merchant Ltd was upheld, namely that, as was put in the headnote of that case, the Employment Tribunal and the EAT had not erred in finding that discrimination on grounds of sexual orientation is not discrimination on the grounds of sex within the meaning of the Sex Discrimination Act. A person's sexual orientation is not an aspect of his or her sex.
5. Secondly, the case of Perkins, originally reported in the High Court in 1997 IRLR p297, which at the stage, at any rate, of the Notice of Appeal, was still in the position at which it had been referred to the European Court but not yet decided, has now been decided.
6. The point about Perkins was that, in the Notice of Appeal before us, it was sought to be asserted that in the European Court a different view would, or might, be taken of the case of Perkins, which was based upon service in the Armed Forces, to that which had been taken by that Court in Grant v South West Trains Ltd, which had related to the availability of free or concessionary travel for homosexual partners.
7. In the event, what has occurred is that not only has the European Court decided in Grant v South-West Trains Ltd, that discrimination on grounds of sexual orientation does not fall within the provisions of Article 119 of the Treaty of Rome, on the basis of an allegation of unequal pay, but that subsequently the European Court in the case of Perkins has now decided that the same applies in the context of equal treatment within the Equal Treatment Directive.
8. The third development is that in the case of Smith and Grady v United Kingdom [1999] IRLR 734, the European Court of Human Rights held that Article 8 of the European Convention on Human Rights was violated by the investigation conducted into homosexuality of those in the Armed Forces and their discharge from the Armed Forces.
9. Mr Kibling, who has argued the matter before us today, has accepted in those circumstances that the avenues presented by the argument as previously put that, as a matter of law, the Employment Tribunal erred in failing to find that sexual orientation was a basis for discrimination, is no longer available, either in English law proper, because the Court of Appeal has foreclosed that avenue, or, in the European Court because the decision in Grant v Perkins has foreclosed that avenue. He, however, has submitted that his appeal still had a live point in it on the following two bases.
10. First, when dismissing the main point in Smith v Gardner Merchant Ltd, the Court of Appeal left open an alternative argument which, as I understand it, they remitted for further consideration, namely whether, even within the narrow interpretation of the Sex Discrimination Act it could be said to be available, as an argument on the facts of that case, that a homosexual male was, or had been, treated differently from a homosexual female in the same position.
11. The facts in the present case have never been found, because the Employment Tribunal decided the matter, as a matter of law, without the facts being heard and this argument was never put before them. We have no idea whether any such point could be run in this case.
12. It is entirely possible that at a full hearing of this appeal an Employment Appeal Tribunal might come to the conclusion that, notwithstanding the nice (used in its old fashioned meaning) argument, it was either not available or hopeless in relation to this case, or that because it was not argued below it should not now be permitted to be argued, or remitted, so to be argued in this case. But nevertheless, it seems to us, that because of the possible availability of this line of argument, which was found to be a live one by Smith v Gardner Merchant Ltd CA and has never been ruled out in this case, putting it at its lowest, that this appeal should proceed on that ground.
13. The second argument put forward by Mr Kibling was that he could seek support from the decision of Smith and Grady and the decision of the European Court of Human Rights, by way of submitting in this case that the Court should apply by osmosis the principles of the Human Rights Act, which will not strictly apply, certainly do not at the moment apply, but which may have come into force by the time the Employment Tribunal comes to hear this case, if leave were granted by the Employment Appeal Tribunal.
14. We say nothing at this stage about that point. First, because it may be that the Employment Appeal Tribunal will not give leave; secondly, because they may take the view that the Human Rights Act has no direct, or indirect, relevance to this case, in which case, of course, it would be sought to be asserted that the Sex Discrimination Act itself was ineffective to assist the Appellant in the light of the Court of Appeal decision; and thirdly, because it may be that this Employment Tribunal, even if leave were granted, would be deciding the matter before October, in any event - I have no idea about what timetable would evolve.
15. In those circumstances the leave that we conclude it right to give on this preliminary hearing is limited to the first point, although clearly nothing can, or should, shut out Mr Kibling from referring to his second argument on the full hearing of this appeal, which we now permit.
16. Finally, Mr Kibling sought leave to amend the Notice of Appeal to bring in a further point. This Applicant was paid in full for the period when he was absent through illness and then, in due course, when he was certified apparently fit to return to work, was given notice and paid in full, so that he has no claim on the face of it in contract for any loss arising out of his employment.
17. What is sought to be asserted here by way of an out of time application to amend the Notice of Appeal, is that the employers were in breach of their own sickness absence procedure and that some claim or other might be capable of being made for compensation arising out of that, notwithstanding the fact that the Appellant was paid in full for his notice period.
18. We conclude that, even if there were something in this point (and none of us can see any arguability in it, in any event) there are no grounds for giving leave to amend the Notice of Appeal out of time, in any event, and we conclude that this case should be a simple point, right or wrong, on the question of the applicability or otherwise of the Sex Discrimination Act and like provisions. We therefore refuse the application for leave to amend, but otherwise this appeal should go forward.