R v Secretary of State for Defence ex parte Perkins (No.1 and No.2)
| Jurisdiction | England & Wales |
| Judgment Date | 13 July 1998 |
| Date | 13 July 1998 |
| Court | Queen's Bench Division |
Queen's Bench Division
Before Mr Justice Lightman
Sex discrimination - EEC directives - ruling on pay applies to treatment also
A ruling by the Court of Justice of the European Communities on equal pay (Council Directive 75/117/EEC (OJ 1975 L45/19)) applied also to equal treatment (Council Directive 76/297/EEC (OJ 1976 L39/40).
Thus the ruling in Grant v South West Trains Ltd Case C-249/96TLRICR (The Times February 23, 1998; (1998) ICR 449), inter alia, that discrimination based on sexual orientation did not constitute discrimination based on the sex of the worker contrary to the Equal Pay Directive was decisive of the question as to whether the policy of the Secretary of State for Defence that all persons of known homosexual orientation should be discharged from the armed forces was contrary to article 2(1) of the Equal Treatment Directive.
Mr Justice Lightman, sitting as an additional judge of the Queen's Bench Division, so held in a reserved judgment when considering, at the invitation of the Administrator of the European Court of Justice, whether to withdraw the reference made under article 177 of the EC Treaty on whether discrimination based on homosexual orientation was contrary to article 2(1) of the Equal Treatment Directive and whether the policy of discharging from the armed forces any person of homosexual orientation was capable of being justified under article 2(2) of the directive concerning occupational activities for which the sex of the worker constituted a determining factor. The reference was withdrawn.
Mr John Bowers, QC, for the applicant, Terence Perkins; Mr Patrick Elias, QC and Mr J Richard McManus for the secretary of state.
MR JUSTICE LIGHTMAN said that the European Court in Grant had identified three issues which required determination, the third of which was relevant to the instant case, namely whether discrimination based on sexual orientation constituted discrimination based on the sex of the employee.
The European Court had decided that Community law as it stood at present did not cover or render unlawful discrimination based on sexual orientation.
On its face that holding was decisive in the instant case, for it was the alleged illegality under Community law of discrimination on the ground of
sexual orientation which was the basis of the applicant's attack on the policy of the secretary of state.
The applicant had contended that...
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