House of Lords
Appeals by complainants from the decisions of the Court of Session and Court of Appeal dismissing their claims of sex discrimination. Macdonald served in the Royal Air Force until he was dismissed because he admitted he was a homosexual. He applied to the employment tribunal for compensation for unlawful discrimination and sexual harassment consisting of personal and intrusive questioning about his homosexuality. The tribunal dismissed his application. The Employment Appeal Tribunal allowed his appeal ((2001) ICR 1). The Court of Session restored the order of the employment tribunal ((2002) ICR 174). Macdonald appealed to the House of Lords. Pearce was a teacher who was subjected to a campaign of verbal abuse by pupils because she was a lesbian. She applied to the employment tribunal seeking compensation from the school for failing to prevent the harassment by pupils. The tribunal, EAT and Court of Appeal (Pearce v Governors of Mayfield School (2002) ICR 198 dismissed her claim. Pearce appealed to the House of Lords. The issues for the House of Lords were (i) whether the appellants had suffered direct discrimination within s.1(1)(a) Sex Discrimination Act 1975, (ii) whether sexual harassment of itself constituted sex discrimination under the Act, and (iii) whether the school would have been liable for the pupils' campaign of verbal abuse against Pearce.
HELD: (1) Macdonald and Pearce were not treated less favourably than their employers would have treated a woman or man respectively, on the ground of their sex. The word "sex" in the 1975 Act meant gender and did not include sexual orientation. (2) The correct comparators in each case under s.5(3) of the Act were a person of the opposite sex who was homosexual. (3) Sexual harassment was not of itself less favourable treatment. The fact that the harassment was gender specific did not establish conclusively that it was on the ground of sex. Under s.1(1)(a) a comparison had to be made. In each case a homosexual of the opposite sex would not have been treated any differently and the appellants failed to establish harassment on the ground of sex. (Strathclyde Regional Council v Porcelli (1986) ICR 564 and British Telecommunications plc v Williams (1997) IRLR 668 disapproved.) (4) Macdonald could not rely on any breach of convention rights because the alleged discriminatory treatment occurred before the Human Rights Act 1998 was enacted. The appeal by the Ministry of Defence to the Court of Session was not "proceedings brought by a public authority" within s.22(4) of the 1998 Act. Nor was the appeal an act prohibited by s.6(1) of the Act. (5) The school's failure to protect Pearce from harassment did not constitute sex discrimination. The acts were not done by employees nor were the pupils acting as agents and the school was not vicariously liable for them. The "control" test expounded in Burton v De Vere Hotels Ltd (1997) ICR 1 overlooked the need to establish discrimination and that case was wrongly decided.
 UKHL 34, 1 All ER 339
William Meade (Senior Clerk)