MacDonald v Ministry of Defence

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date19 June 2003
Neutral Citation[2003] UKHL 34

[2003] UKHL 34


The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Hope of Craighead

Lord Hobhouse of Woodborough

Lord Scott of Foscote

Lord Rodger of Earlsferry

Macdonald (AP)
Advocate General for Scotland
(Respondent) (Scotland)
Governing Body of Mayfield School

My Lords,


These appeals raise three points on the application of the Sex Discrimination Act 1975. In their speeches my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry have set out the facts of the two cases. I shall not repeat them.

Sex discrimination and sexual orientation


Mr Macdonald was dismissed from the Royal Air Force because he was a homosexual. Ms Pearce was subjected to a sustained campaign of harassment while employed as a teacher at Mayfield School, because she was a lesbian. Each claims that this treatment comprised 'direct' sex discrimination, that is, discrimination as defined in section 1(1)(a) of the 1975 Act. Section 1(1)(a) provides that a person discriminates against a woman if 'on the ground of her sex he treats her less favourably than he treats or would treat a man'. The definition applies correspondingly in the case of discrimination against a man. Mr Macdonald's case is that, on the ground of his sex, his employers treated him less favourably than they would have treated a woman. Ms Pearce's case is the converse. She was less favourably treated, on the ground of her sex, than her employers would have treated a man


Much of the argument in these two appeals was directed at identifying the appropriate persons with whom the appellants are to be compared when making the 'less favourable treatment' comparison. This issue was placed at the forefront of the appellants' submissions. The statute, they said, envisages a simple comparison of how the claimant was treated and how a person of the opposite sex would have been treated in the same circumstances. Had Mr Macdonald been a woman, he would not have been dismissed. He was dismissed because he was sexually attracted to men. A woman in his position, sexually attracted to men, would not have been dismissed. Ergo, it was said, he was less favourably treated than a woman in his position would have been, and he received this treatment because he was a man, that is, on the ground of his sex. Hence, his case satisfies the statutory definition of discrimination in section 1(1)(a).


The opposing arguments focused on the need for a 'like with like' comparison, as underlined by section 5(3). To compare Mr Macdonald with a heterosexual woman is not to compare like with like. The appropriate comparator is a lesbian. She too would have been dismissed under the policy then prevailing in the armed forces. So Mr Macdonald did not receive less favourable treatment on the ground of his sex. Similar arguments were advanced in the converse case of Ms Pearce.


My Lords, in the recent decision of your Lordships' House in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, paras 7 to 12, I noted that in cases of direct sex discrimination difficulties may arise in attempting to decide whether the employer treated a claimant woman less favourably than he would have treated a man without knowing the reason why the claimant was treated as she was. A similar flaw permeates the appellants' arguments in the present appeals. The reasons why Mr Macdonald was dismissed and Ms Pearce was harassed and humiliated are clear. But the appellants seek to put these reasons on one side and disregard them when identifying, as the first step in their argument, the appropriate comparator for this man and this woman.


I prefer to approach the matter from the other end. I start by considering the reasons for the treatment of which complaint is made. Approached in this fashion the appeals become straightforward. Take Mr Macdonald's case. He was dismissed because he was a homosexual. This was pursuant to a policy adopted towards service personnel, of either sex, who were sexually attracted to persons of the same sex. This, and this alone, was the reason for Mr Macdonald's dismissal. Plainly, this was a discriminatory policy. But, equally plainly, it was a policy which discriminated between people solely on the ground of their sexual orientation, not on the ground of their sex. The policy was gender neutral, applicable alike to men and women and, moreover, applied alike to men and women.


For this short reason Mr Macdonald's principal ground of appeal must fail. It must fail because it was common ground, and rightly so, that in the context of section 1 of the Act 'sex' means gender and does not include sexual orientation. Gender and sexual orientation are distinct personal characteristics. In the Sex Discrimination Act Parliament proscribed gender as an acceptable basis for discrimination in the circumstances specified in the Act. Since the Act was admittedly not aimed at sexual orientation, there can be no justification for interpreting the expression 'on the ground of her sex' in section 1 expansively so as to include cases which, in truth, are cases of discrimination solely on the ground of sexual orientation. Perceived deficiencies in this regard in the legislative scheme are soon to be made good, in the field of employment and to a limited extent elsewhere, when in the near future the government duly fulfils the United Kingdom's obligations under Council Directive 2000/78/EC of 27 November 2000.


For the like reason so also must Ms Pearce's principal ground of appeal fail. The disgraceful way she was treated by some of the pupils at the school was because of her sexual orientation, not her sex. Ms Pearce accepted that the children would have pursued a comparable campaign of harassment against a homosexual man.


For good measure I add that, having identified sexual orientation as distinct from sex, as the sole reason why Mr Macdonald was dismissed, there is no difficulty in identifying the appropriate comparator. Given the reason for Mr Macdonald's dismissal, it is readily apparent that the appropriate comparison is with a homosexual woman. Otherwise one would not be comparing like with like. Comparison with the treatment afforded to a heterosexual woman would not be a comparison where the circumstances of one case are materially the same as the other, as required by section 5(3). When Mr Macdonald is compared with a homosexual woman it is evident that he was not less favourably treated than she would have been. She also would have been dismissed. Similar reasoning in the case of Ms Pearce leads inexorably to the conclusion that in her case the appropriate comparator is a homosexual man and that she too was not treated less favourably than her male comparator would have been.


I should also mention an argument based on the Race Relations Act 1976. The appellants sought to rely on the analogy of the restaurateur who refuses to serve mixed race couples. He will not admit a black man accompanied by a white woman, or a white man accompanied by a black woman. This, it was said, would be racial discrimination. It would be racial discrimination even though the restaurateur's policy applied equally to men of all races.


I agree. That would be racial discrimination. But the analogy sought to be drawn with the present cases is unsound. A restaurateur who refuses to serve a black man because he is accompanied by a white woman would thereby be discriminating on 'racial grounds'. That phrase is amply wide enough to include such a case. This treatment would not cease to be discrimination on racial grounds because the restaurateur would equally discriminate on racial grounds in the converse situation of a white man and a black woman.


This is to be contrasted with the present cases. An employer who dismisses a male employee because of his sexual orientation is not discriminating against him on the ground of his sex. The employer is discriminating against him on a ground which is outside the scope of the legislative prohibition.


For this reason the appellants are not assisted by the Northern Ireland case of Smyth v Croft Inns Ltd [1996] IRLR 84, where a barman in a public house with Protestant customers in a 'loyalist' area of Belfast was constructively dismissed because he was a Roman Catholic. That was rightly held to be discrimination 'on the ground of religious belief' within the meaning of section 16 of the Fair Employment (Northern Ireland) Act 1976, as amended by the Fair Employment (Northern Ireland) Act 1989. The employer's conduct did not cease to be discrimination on that ground because the employer would have treated in the same way a Protestant barman in a public house with Roman Catholic customers. As Sir Brian Hutton LCJ said, that showed only that the employer would be guilty of religious discrimination against both barmen: see [1996] IRLR 84, 85-86, paragraph 28.

Sexual harassment


Ms Pearce advanced her claim on an alternative basis. She was subjected to a campaign of gender specific harassment. She was vilified in terms which would not have been used against a man. This, it was submitted, is capable of amounting to less favourable treatment on the ground of her sex without the need to identify a male comparator and regardless of the reason for the campaign. Mr Macdonald advanced a similar argument regarding the intrusive questioning he suffered at an interview with his superior officer.


The starting point here is to note that the expression 'sexual harassment' is ambiguous. The adjective 'sexual' may describe the form of the harassment; for instance, verbal abuse in explicitly sexual terms. Or it may be descriptive of the reason for the...

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