[2003] ICR 937, HL

Background

This judgment deals with two similar cases both of which were appealed to the House of Lords.

In Macdonald , the Plaintiff was a member of the Royal Air Force who applied for a transfer to a different location. The transfer process involved certain vetting procedures in the course of which the Plaintiff had to answer questions about his sexuality. As a result, the Air Force learned of the Plaintiff’s homosexuality and subsequently compelled him to resign.

In Pearce , the Plaintiff was a science teacher at a high school and was also a lesbian. She was subject to repeated abuse from the students, both in words and behavior, and found the school’s response of to have been seriously inadequate.

In both cases, the Plaintiff brought a claim against the employer under the Sex Discrimination Act 1975 which prohibits discriminating against a person where “on the ground sex” that person is treated less favourably than a member of the opposite sex would be. The issue before the House of Lords is whether the prohibition under the Act extends to discrimination on the ground of sexual orientation.

Court’s decision

The House of Lords found that the Plaintiffs were discriminated against on the ground of sexual orientation, which is not within the scope of the Sex Discrimination Act 1975. Gender and sexual orientation are distinct personal characteristics. The 1975 Act proscribes discrimination on the basis of gender and was not aimed at sexual orientation, thus there can be no justification for interpreting “on the ground of sex” so expansively as to include sexual orientation discrimination cases.

Accordingly, in determining whether a homosexual person discriminated against on the basis of sexual orientation was treated “less favourably,” the appropriate comparator is a homosexual person of the opposite sex. The House of Lords rejected Mr. Macdonald’s argument that since he is a man who is attracted to men, the relevant comparator would be a woman who is attracted to men (in other words, a heterosexual woman).

Thus when each Plaintiff is compared to a homosexual of the opposite sex in the same situation, it is apparent that they were not treated less favourably: a female homosexual in Mr. MacDonald’s position would also have been dismissed by the Royal Air Force, and a male homosexual in Ms. Pearce’s position would likely also have been harassed by the students.

The House of Lords additionally held that as far as sexual harassment is concerned, the use of homophobic terms, even gender-specific, shows that the reason for this treatment was the Plaintiff’s sexual orientation and not his or her sex.

[2003] UKHL 11

Background

The Plaintiff was a female chief inspector at the Royal Ulster Constabulary. One of the responsibilities of chief inspectors was to conduct appraisals of constables. A constable made a complaint to the superintendant about the manner in which the Plaintiff had conducted his appraisal, and subsequently took his complaint to the Police Federation. In the course of a meeting that resulted between the superintendant and he Police Federation, the superintendant promised that henceforth he would conduct the appraisals himself. After the Plaintiff was informed that she was relieved of that task, she lodged an application with the Industrial Tribunal complaining that she had been unlawfully discriminated against by her employer on the ground of her sex contrary to the Sex Discrimination (Northern Ireland) Order 1976, as other male chief inspectors were still in charge of conducting these appraisals.

Court’s decision

The House of Lords held that the Plaintiff failed to establish that she was unlawfully discriminated against.

To make out a case of unlawful sex discrimination, the Plaintiff has to show that the Defendant treated her “less favourably than he treats or would treat” a man in the same situation. The comparator must be someone whose relevant circumstances, except gender, is in all material aspects the same as the Plaintiff’s.

The Plaintiff contends that she was treated less favourably than two other male chief inspectors who retained their counseling responsibilities. However, the House of Lords found that the two male chief inspectors were not valid comparators, as their relevant circumstances were not the same as the Plaintiff’s. Unlike the Plaintiff they had not been the subject of complaints, and being from a different division they were not subject to the authority of the same superintendant.

Thus, the Plaintiff failed to establish that the Defendant had treated her less favourably than it would have treated a male officer in the same circumstances. There was no evidence that would have entitled a finding that if similar complaints had been made against a male chief inspector of the same division he would have been treated more favourably than the Plaintiff, and it was not enough simply to point to the fact that she was treated differently.

In general, a victim who complains of discrimination must satisfy the fact finding tribunal that, on a balance of probabilities, he or she has suffered discrimination falling within the statutory definition. This may be done by placing before the tribunal evidential material from which an inference can be drawn that the victim was treated less favourably than he or she would have been treated if he or she had not been a member of the protected class. Comparators in the same relevant circumstances may constitute such evidential material. In the absence of comparators of sufficient evidential value some other material must be identified that is capable of supporting the requisite inference of discrimination, for planations of discriminexample discriminatory comments made by the alleged discriminator about the victim, or unconvincing denials or exatory intent given by the alleged discriminator.

[2003] ICR 318

Background

The Plaintiff worked as a probationary officer at the West Yorkshire Constabulary, where she was the victim of hostile and critical treatment by her coworkers. She was eventually dismissed, and brought claims of unfair dismissal and sex discrimination against the employer before the Employment Tribunal. The Tribunal found that the Plaintiff suffered less favourable treatment on the ground of her sex, and that the Defendant was vicariously liable for the acts of sex discrimination that led to her dismissal. The Tribunal awarded her damages for loss of future earnings and non-pecuniary loss, including £65,000 for injury to feelings. The Defendant appealed to the Employment Appeal Tribunal, which halved the award for injury to feelings to £30,000. The Plaintiff appealed to the Court of Appeal.

Court’s decision

For an appellate body to interfere with the assessment of awards of the Employment Tribunal, it has to be established that the Tribunal has acted on a wrong principle of law or has misapprehended the facts or made a wholly erroneous estimate of the loss suffered. Here, the Court found that the Employment Tribunal had erred in law, and further reduced the award for injury to feelings to £18,000 in order to bring it more into line with the level of damages of the majority of awards made and approved on appeal in Employment Appeal Tribunal cases (ranging from £15,000 to £31,000).

Awards for injury to feelings are compensatory, and should be just to both parties. They should fully compensate the victim without punishing the tortfeasor. The Court set out three broad bands of compensation for injury to feelings to serve as guidance for Employment Tribunals:

1. Top band: between £15,000 and £25,000, used only in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race.
2. Middle band: between £5,000 and £15,000, used for serious cases which do not merit an award in the highest band.
3. Lowest band: between £500 and £5,000, used for less serious cases, such as where the act of discrimination is an isolated or one off occurrence.

In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

[1999] IRLR 81

Background

The Plaintiff was a female detective constable in the Lincolnshire police force. She filed a complaint with the Industrial Tribunal against a coworker Detective Sergeant Walker and their employer the Chief Constable of Lincolnshire Police. The Plaintiff contended that she had been unlawfully discriminated against on the ground of her sex by Walker. The Industrial Tribunal upheld the Plaintiff’s complaint, finding that she was discriminated against on the ground of her sex contrary to the Sex Discrimination Act 1975.

The Plaintiff complained of two discriminatory acts by Walker, one of which took place at a pub where the Plaintiff went after work to meet with several coworkers including Walker, and the other at a leaving party for another coworker. One of the issues on appeal before the Employment Appeal Tribunal (EAT) is whether these discriminatory acts took place “in the course of employment” such that the Chief Constable as employer would be vicariously liable for Walker’s actions.

Court’s decision

The EAT held that although the two incidents occurred at “social events” away from the police station, these events were extensions of the work place thus the incidents took place “in the course of employment.” In so holding, the EAT applied the reasoning from Jones v Tower Boot Co Ltd. that the words “in the course of employment” should be interpreted broadly, in the sense in which they are employed in everyday speech. Here, both incidents were social gatherings involving officers either immediately after work or for an organized leaving party. They were connected to work and the workplace, and would not have happened but for the Plaintiff’s work.

When there is a social gathering of work colleagues such as there was in this case, it is for the Tribunal to decide whether or not the circumstances show that what was occurring was an extension of the employment. Each case would depend on its own facts, including but not limited to whether a person is or is not on duty, or whether or not the conduct occurred on the employer’s premises.

[1999] ICR 942, EAT

[1999] UKEAT 1332_95_1905

Background

The Plaintiff was dismissed by her employer and brought a claim of unlawful discrimination against the employer under the Sex Discrimination Act of 1975, arguing that she was dismissed on the grounds of her pregnancy. That claim was settled. She subsequently attempted to obtain employment and references were requested of the employer, who failed to provide them. The Plaintiff then brought a victimization claim against the employer, also under the 1975 Act.

The issue before the Employment Appeal Tribunal is whether the 1975 Act includes claims by former employees, or whether an employment relationship had to be subsisting at the date when the act of victimization was done.

Court’s decision

The Tribunal held that the 1975 Act allows for claims by former employees, such as that of the Plaintiff’s. Sec. 6(2) of the Act says 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 … in the way he affords her access to … any other benefits, facilities, or services ….” The Tribunal found that this language contemplates individuals “who are employed” and those “who have been employed”, in other words, both present and former employees. The words “access to any other benefits, facilities, or services” are also apt to include both present and former employees.

[1999] ICR 494, CA

Background

The Plaintiff was a single mother who worked as a train operator with the Defendant London Underground (LU). Several years after she joined LU, LU proposed a new system of assigning shifts which would have the effect of making it considerably harder for her to schedule work such that she would still be able to adequately care for her child.

The Plaintiff subsequently brought a claim against LU under the Sex Discrimination Act 1975, arguing that she had been indirectly discriminated against on the grounds of her sex. One hundred percent (2,023 of 2,023) of male train operators were able to comply with the new condition, while 95.2% (20 of 21) of female train operators were able to comply. The Plaintiff was the only operator who was not able to comply.

The issue before the Court is whether the new work condition imposed by LU was one with which a “considerably smaller proportion” of female train operations than of male train operators could comply, one of the elements required to prove indirect discrimination.

Court’s decision

The Court ruled in favor of the Plaintiff, finding that the “considerably smaller proportion” requirement was satisfied. In measuring whether a disparate effect between men and women amounts to indirect discrimination, it is important not to simply consider the specific percentage difference, or to draw a line above or below which an allegation of discrimination succeeded or failed. Other factors that can reasonably be considered include historical reasons leading to a small number of woman in the workplace, the discrepancy in numbers between male and female operators, and the fact that the burden of child care falls upon more women than men.

The Court concluded that the comparatively small number of female operators compared to male operators (21 vs. 2,023) indicate both that it was either difficult or attractive for women to work in that position, and that the number of women who were able to comply was likely to be lower than 95.2%. That not a single of the 2,023 male operators was disadvantaged by the new condition despite the vast preponderance of males within the group shows that the condition bore disproportionately as between men and women.

[1996] 1 All ER 76

Background

The Plaintiff was a female employee of the British Council who, as a condition of a promotion, was required to agree to the addition of a “mobility clause” in her employment contract. Under the mobility clause, she was contractually bound to serve in such parts of the United Kingdom as her employers might in their discretion require.

The employer considered moving its operation to a different city, but insufficient numbers of employees were willing to move. As result, the employer indicated that it might have to invoke the mobility clause and treat any employee who refused to move as being in breach of contract. The Plaintiff, being the secondary earner in her household, was for financial and other reasons unwilling to make the move, although she was not in fact asked by the employer to do so. The Plaintiff sought a declaration pursuant to the Sex Discrimination Act 1975 that the mobility clause was unenforceable as it constitutes indirect sexual discrimination because many more women than men were secondary earners and thus unable to comply with the clause.

Court’s decision

The question before the Court is whether the Plaintiff has established all the elements required for an indirect discrimination claim, in particular the showing that the employer “applied” the relevant condition to her and that the condition was “to her detriment” (respectively known as the application and the detriment requirements).

This issue turns on the question of at what point of time the impact of the application and detriment requirements is to be judged. The Court held that it is to be judged at the moment when the contract was entered into. Thus, the Defendant “applied” the obligation of the mobility clause to the Plaintiff when it was incorporated into her contract. The mobility clause became to her “detriment” once she could demonstrate that it had the potential to operate as a requirement with which she cannot comply; in other words, the detriment requirement is assessed anticipatorily, regardless of whether or not the employer was seeking at the moment of application to enforce the term against the employee.

Accordingly, the Court found that the Plaintiff has established a prima facie claim of indirect discrimination.

[1990] 2 All ER 607

Background

The Plaintiff and his wife, both aged 61, visited a public swimming pool run by the Defendant council. The Defendant had adopted a policy of providing free swimming facilities for persons of pensionable age, which for women was 60 and for men was 65. As a result, the Plaintiff’s wife was admitted for free while he was charged the admission fee.

The Plaintiff brought an action against the Defendant claiming that it had unlawfully discriminated against him on the grounds of sex, contrary to the Sex Discrimination Act 1975. The judge dismissed the claim and the Court of Appeal affirmed his decision on appeal, on the ground that the Defendant had not intended to discriminate between men and women in the provision of free swimming. The Plaintiff appealed to the House of Lords.

Court’s decision

Discrimination is defined in Sec. 1(1)(a) in the 1975 Act as follows: “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 favourable than he treats or would treat a man.”

The majority ruled in favor of the Plaintiff. It held that since the statutory pensionable age was itself a gender-based criterion which directly discriminated between men and women, in that it treated women more favourably than men “on the ground of sex,” any adoption of the same criterion likewise involved unlawful sex discrimination. It is irrelevant whether the reason for the discriminatory act was benign or not, since whether a person is afforded less favourable treatment because of his sex is a matter to be determined objectively. Accordingly, since the Plaintiff would have received the same treatment as his wife but for his sex, the council had discriminated against him “on the grounds of his sex” for the purposes of s 1(1)(a).

The dissent disagreed with the majority on the question of whether “on the ground of sex” can be satisfied simply by looking at the effect of the Defendant’s action, or whether an inquiry into the Defendant’s intention is required. The dissenting lords are of the view that “grounds” is synonymous with “reasons”, thus it is necessary to identify the intention of the Defendant. If the subjective reasons for the Defendant’s actions are not discriminatory in nature, then it has not violated the Act even if it is foreseeable that its actions would result in disparate treatment of men and women.

Background

The Defendant in this case is the local education authority, the City Council. The Council provided 540 places for boys at five single sex grammar schools, but only 360 places for girls at three equivalent schools. Consequently, a girl would have more difficulty gaining entry into one of these schools than a boy with comparable test scores.

The Equal Opportunities Commission brought a case against the City Council under the Sex Discrimination Act of 1975. The trial court declared that the Council’s arrangement constituted sex discrimination. The Defendant appealed to the Court of Appeal against the judgment of the trial court. The Court of Appeal affirmed the trial court’s decision, and the Defendant appealed to the House of Lords.

Court’s decision

The House of Lords upheld the decision of the trial court. In particular, it affirmed the holding that the Plaintiff had successfully established the existence of sex discrimination by showing that there was less favourable treatment on the ground of sex, in that girls would have received the same treatment as boys but for their sex.

Under the 1975 Act, there is sex discrimination if there is less favourable treatment on the ground of sex. The House of Lords held that it is unnecessary to show discriminatory intention or motive on the part of the Defendant to establish liability, although it might be relevant as far as remedies are concerned. Likewise, it is unnecessary for the Plaintiff to prove that the choice denied to girls is “better” than the alternative; it is sufficient to show that by denying girls the same opportunity as boys, the Defendant is depriving them of a choice which is valued by them and their parents, or is obviously valued by many others. Lastly, it was held that a breach of Sec. 23 of the 1975 Act, which deals with discrimination by local education authorities, occurs not only where the authority engages in an act which itself involves sex discrimination, but also where it engages in an act that results in sex discrimination. The Plaintiff does not have to first show that the authority breached its statutory duties; it is sufficient that the Defendant, in carrying out its functions, did an act (or deliberately omitted to do an act) where such act or omission constituted sex discrimination.

Background

Under the Immigration Act 1971, a Commonwealth citizen who holds a British passport can apply for a special voucher which grants him or her permission to enter and settle in the UK if he or she meets the eligibility criteria; one criterion is that the applicant be a head of household. The Plaintiff is a married woman and a British passport holder resident in India. She applied for a special voucher but was denied by the entry clearance officer on the ground that she was not a head of household.

One of the Plaintiff’s claims before the Court was that she was discriminated against on the ground of sex contrary to the Sex Discrimination Act 1975. The special voucher scheme proceeds upon the assumption that in a household that includes a married couple the husband is the head of household. Only when a woman is widowed or single, or when her husband suffers from a long term medical disability, is she regarded under the scheme as the head of household.

Court’s decision

The majority held that the special voucher scheme is not unlawful under the 1975 Act. Under the section 29 of 1975 Act, it is “unlawful for any person concerned with the provision (for payment or not) of goods, facilities, or services to the public or a section of the public to discriminate against a woman who seeks to obtain or use those goods, facilities, or services ….” The majority found that, although the eligibility criteria for obtaining a special voucher, as described above, was plainly discriminatory against woman, the granting of a special voucher cannot be considered a provision of facilities or services to a section of the public. The majority read section 29 as applying only to the direct provision of facilities or services, and not to the mere grant of permission to use facilities. Also, as far as acts by the government are concerned, section 29 applies only to those which are of a kind similar to acts that might be done by a private person, namely “market-place activities,” which the granting of a special voucher is not.

The dissent reads “facilities” more broadly than the majority, and considers section 29 as wide enough to cover public acts of government departments such as the granting of a special voucher for entry into the UK. Thus it found that the special voucher scheme, in so far as it discriminates between husbands and wives, is subject to and unlawful under the 1975 Act.