Pearce v Governing Body of Mayfield School

JurisdictionEngland & Wales
JudgeLADY JUSTICE HALE,LORD JUSTICE HENRY
Judgment Date31 July 2001
Neutral Citation[2001] EWCA Civ 1347
Docket NumberCase No: A1/2000/2226
CourtCourt of Appeal (Civil Division)
Date31 July 2001

[2001] EWCA Civ 1347

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Henry

Lord Justice Judgelady Justice Hale

Case No: A1/2000/2226

Shirley Phyllis Pearce
Appellant
and
The Governing Body Of Mayfield School
Respondent

Ms L Cox QC & Ms S Drew (instructed by Messrs Tyndallwoods for the Appellant)

Ms C Booth Q.C. & Ms S Moore (instructed by Hampshire County Council Legal Department for the Respondent)

LADY JUSTICE HALE
1

The appellant is a science teacher of many years' standing. She joined the staff of the respondent school in 1975. She is also a lesbian. From the early 1990s, she was subject to repeated abuse from the pupils, both in words and behaviour. The response of the school was, in her view, seriously inadequate. Eventually her health suffered and she took early retirement in 1996. She brought these proceedings under the Sex Discrimination Act 1975 ("the 1975 Act"). On 1 April 1999, an employment tribunal held that, with one exception, what had happened to her was not discrimination on grounds of sex within the meaning of the Act. The school had dealt adequately with that particular incident, but would have been responsible for the major part of the abuse she had suffered, had that been sex discrimination under the Act. In a judgment delivered on 7 April 2000, the Employment Appeal Tribunal dismissed her appeal and substituted a finding that none of the pupils" behaviour constituted sex discrimination but also stating that if it had been they would have remitted the question of whether the school was responsible for it. The Human Rights Act 1998 ("the 1998 Act") came into force on 2 October 2000.

2

On appeal to this court, the following issues arise:

a) Was any of the behaviour of which the appellant complains sex discrimination within the meaning of the 1975 Act, irrespective of the Human Rights Act 1998?

b) If it was not, has the implementation of the duty in section 3(1) of the 1998 Act, "so far as it is possible to do so" to read and give effect to legislation in a way which is compatible with the Convention rights made a difference?

c) If it has or might have made a difference, does section 3 operate retrospectively so as to affect liability for events taking place before the 1998 Act came into force?

d) If there was sex discrimination, is the school to be held responsible under the 1975 Act for subjecting the appellant to the behaviour of its pupils?

Was it sex discrimination?

3

Section 1(1)(a) of the 1975 Act provides:

"A person discriminates against a woman in any circumstances relevant for the purposes of this Act if (a) on the ground of her sex he treats her less favourably than he treats or would treat a man."

There is no doubt that what happened to Ms Pearce was discrimination, in the sense that the pupils treated her less favourably than they treated other teachers. The employment tribunal (paragraph 59) found that "the applicant has undoubtedly suffered very badly at the hands of the pupils." The pupils singled her out for particularly unpleasant abuse because she was a lesbian. There were references to lemons and the smell of lemons; she was called "a lesbian shit", "lezzie", "lemon", "dyke"; this took place in class, elsewhere in the school, and outside. In one incident, a pupil had said "I hate lezzies and queers. I think they should all be prosecuted, don't you Miss?" In the worst incident of all, pupils persistently called out the word "pussy"; there were comments about the smell of fish and cat food; at the end of the afternoon, the applicant found an opened tin of cat food and half its contents in her coat pocket.

4

But discrimination is only unlawful if it is on the particular grounds prohibited by statute: race, sex (including gender reassignment) or disability. There is, at the moment, no legislation expressly prohibiting discrimination on grounds of sexual orientation, although the Treaty of Amsterdam will require it to be in place before 2 September 2003. Furthermore, discrimination is defined as treating a person less favourably than an actual or hypothetical comparator of the opposite sex. There was no evidence in this case that the pupils would have treated a male homosexual teacher any more favourably than they treated Ms Pearce, or that the school's response to similar abuse of a male homosexual teacher would have been any different.

5

Nevertheless, there are two respectable arguments that this was less favourable treatment on grounds of sex. The first is based upon the gender specific nature of the abuse itself. The words used could not have been used of a man. Thus, argues Miss Cox QC on behalf of Ms Pearce, this is analogous to sexual harassment. She relies upon Porcelli v Strathcly de Regional Council [1986] IRLR 134, a decision of the Court of Session. Two male laboratory technicians engaged in a deliberate policy of making life as difficult as possible for their female colleague; some of this included sexually suggestive remarks and behaviour. The employment tribunal held that "it was clear that some of the treatment was different from what they would have directed towards a man in that there was certainly a degree of sexual harassment". However, had the applicant been a man whom the two disliked as much as they disliked her, they would have treated him just as unfavourably. "The specific nature of the unpleasantness might have been different but it would in our view have been no less unpleasant." The Court of Session, however, held that the sexual harassment part of the campaign was clearly directed against the applicant because she was a woman. "It was a particular kind of weapon, based upon the sex of the victim, which would not have been used against an equally disliked man." It was the nature of the treatment, rather than the motive, which made it different from and less favourable than the treatment given to a man.

6

The second argument concerns the sort of man with whom the appellant is to be compared. Section 5(3) requires that

"A comparison of the cases of persons of different sex under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

This difficult issue was considered by this court in Smith v Gardner Merchant [1998] IRLR 510. A male homosexual barman complained of offensive remarks about his sexuality from a female colleague. Ward LJ accepted (paragraph 39) that discrimination based upon homosexuality might also be discrimination because he was a man. The questions were (paragraph 40):

"(a) what, as a matter of fact was the treatment received by the

employee; (b) was he treated less favourably than the woman with

whom he falls to be compared; and (c) would he have been so treated but

for his sex?"

However, Ward LJ rejected the argument that a homosexual male, like a pregnant woman, was in a unique category with no equivalent in the opposite sex and thus there could be no comparator. He also rejected the argument that the appropriate comparator was a heterosexual woman.

7

The source of this argument is Dr Robert Wintemute: see "Recognising new kinds of sex discrimination: transsexualism, sexual orientation and dress codes" [1997] 60 MLR 334; and now "Lesbian and Gay Inequality 2000: the Potential of the Human Rights Act 1998 and the Need for an Equality Act 2002" [2000] EHRLR 603. It runs as follows. The relevant characteristic of the complainant when considering the unfavourable treatment was his preference for male sexual partners. For the purpose of the comparison all other circumstances must remain the same and only the sex of the comparator changed. Thus the relevant comparator is a woman who also has a preference for male sexual partners. Ward LJ saw the force of the argument and so do I. Those who treat homosexuals of either sex less favourably than they treat heterosexuals do so because of their sex: not because they love men (or women) but because they are men who love men (or women who love women). It is their own sex, rather than the sex of their partners, which is the problem.

8

Nevertheless, Ward LJ rejected the argument. Section 5(3) requires that the relevant circumstances are identified. This will depend upon the nature of the complaint and the factual matrix within which it is made (paragraph 49). In that case the complainant himself had identified his homosexuality as the relevant characteristic (paragraph 50). Hence the comparator was a homosexual woman (paragraph 51).

9

Beldam LJ took a rather different view, based upon Porcelli v Strathclyde Regional Council [1986] IRLR 134, as applied by Morison J in the EAT in British Telecommunications PLC v Williams [1997] IRLR 668:

"I agree with Morison J that in general in cases of sexual harassment there is no necessity to look for a comparison with a particular person of the opposite sex. In the case of a man who sexually harasses a woman at work, it will usually be the case that the man would not have sexually harassed another man but the question is whether the sexual harassment took place because of the sex of the victim, not whether it would have amounted to sexual harassment of persons of the opposite sex; equally the question is not whether the sexual harassment would have amounted to sexual harassment of a person of the opposite sex who has particular sexual inclinations." (paragraph 91)"

10

Sir Christopher Slade agreed (paragraph 63) that the tribunals below had erred in not recognising that in some circumstances discrimination stemming from the victim's sexual orientation may at the same time...

To continue reading

Request your trial
14 cases
  • Society of Lloyd's v Laws and Others
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 28 January 2004
    ...[2001] 3 WLR 42, R. v. Kansal (No 2) [2002] 2AC 69, [2001] EWCA Crim 1260 and Pearce v. Governing Body of Mayfield Secondary School [2002] ICR 198, [2001] EWCA Civ 1347, the House of Lords and the Court of Appeal have considered the extent to which the HRA has any retrospective effect. Two......
  • X v Y (Employment: Sex Offender)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 28 May 2004
    ...extend beyond the confines of the home and of private premises to a public space or context. As Hale LJ said in Pearce v. Mayfield School [2002] ICR 198 "15. Sexual behaviour is undoubtedly an aspect of private life, indeed a most intimate and important aspect of private life. Any interfere......
  • Wainwright v Home Office
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 20 December 2001
    ...would have been regarded as correct before the Human Rights Act came into force. Pearce v Governing Body of Mayfield Secondary School [2001] IRLR 669 was cited in support of this 24 However, Mr Wilby argues that this does not apply to s.3 of the Act. Section 3(1) provides: i) So far as it i......
  • Britax International GmbH v Commissioners of Inland Revenue
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 31 May 2002
    ...provided by section 22(4). Mr Singh also relies on two decisions of the Court of Appeal, viz. Pearce v. Governing Body of Mayfield School [2002] ICR 198 and The Home Office v. Wainwright (as yet unreported, judgment handed down 20 December 2001), as decisions binding on the Court of Appeal ......
  • Request a trial to view additional results
2 books & journal articles
  • Defining the limits of discrimination law in the United Kingdom
    • United Kingdom
    • International Journal of Discrimination and the Law No. 15-1-2, March 2015
    • 1 March 2015
    ...see A. Lester and G. Bindman, Race and the Law. (London: Penguin, 1972).6. See Pearce v. Governing Body of Mayfield Secondary School [2001] IRLR 669.7. K. Monaghan, Equality Law. (Oxford: OUP, 2013), pp. 43–45.8. See in general, C. Gooding, ‘The Disability Discrimination Act 1995: An Overvi......
  • Common Wealth
    • United Kingdom
    • The Modern Law Review No. 66-6, November 2003
    • 1 November 2003
    ...another South African decision, cited withapproval by the UK Court of Appeal in Pearce vGoverning Body of Maryf‌ield Secondary School2001 IRLR 669.Common WealthNovember 2003]841rThe Modern Law Review Limited now have an opening to push their national judiciaries towards more activeengagemen......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT