Lynda Clark, Advocate General V. Roderick Kenneth William Macdonald

CourtCourt of Session
JudgeLord Prosser
Docket NumberXA172/00
Publication Date01 June 2001
Date01 June 2001

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Prosser

Lord Kirkwood

Lord Caplan

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...

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