Smith v Gardner Merchant Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date14 July 1998
Judgment citation (vLex)[1998] EWCA Civ J0714-2
Docket NumberEATRF 97/0256/3
Date14 July 1998

[1998] EWCA Civ J0714-2




Royal Courts of Justice


London WC2


Lord Justice Beldam

Lord Justice Ward

Sir Christopher Slade

EATRF 97/0256/3

Paul Smith
Gardner Merchant

MS L COX QC with MR T KIBLING (Instructed by Messrs Judge Priestley, Kent BR1 1JN) appeared on behalf of the Appellant

MR A KORN (Instructed by Messrs Dibb Lupton Alsop, London EC2Y 5AE) appeared on behalf of the Respondent


Tuesday, 14 July 1998


The Burning Question.


This appeal raises important issues. Whereas a male homosexual is in no worse (and no better) position than a male heterosexual in bringing a complaint under section 1 of the Sex Discrimination Act 1975 in cases where less favourable treatment on the ground of his sex has nothing to do with his sexual orientation, what is the position when his orientation is material? In such a case is it necessary to find any comparator for the purpose of the comparative exercise envisaged under sections 1 and 5(3) of the Act, and if it is, is comparison to be made with a homosexual or a heterosexual woman?


The Facts alleged by the Appellant.


Paul Smith is the appellant. He is homosexual. In about the autumn of 1992 he was employed by the respondent as a barman. At first he worked at the Coliseum and there appears to have been no complaint about his conduct or the performance of his duties at that location. Following a reorganisation in about December 1993 he was moved to the Globe Theatre. There he came into contact with a fellow employee, Ms Barbara Touhy. There was trouble between them. He complained as follows:—

"3. On 4th April 1994, I was suspended and on 11th April 1994 I was dismissed following allegations by another employee, Barbara Touhy. Ms Touhy alleged that I had been abusive and threatening towards her, that I flirted with male customers and that I insisted on talking in detail about my love life. None of this was true although I accept I did not get on with Ms Touhy and we did argue because of her attitude towards me as a gay man and because of her use of drugs at work which made her incapable of doing her duties.

4. I had worked with Ms Touhy for approximately 9 days after her transfer from another bar. From the outset Ms Touhy constantly asked personal questions regarding my sexuality and made offensive remarks about my being gay. For example, she said I probably had all sorts of diseases and that gay people who spread Aids should be put on an island.

5. Indeed, Ms Touhy's behaviour towards me was very odd, perhaps based on the fact she was taking drugs. On one occasion at the end of the night shift she punched me in the back. I immediately reported this to the supervisor, who came to see Ms Touhy and asked if she had punched me, which she denied. "


On 4th April 1994 Ms Touhy complained about his conduct, a complaint which was taken so seriously by his employers that he was suspended from work and asked to attend a meeting the following day. It was alleged that he had behaved in a threatening and aggressive manner which he denied. He was asked to attend a further meeting a few days later. During the interval the company interviewed various members of staff. The allegations were again put to Mr Smith at that second meeting. The general manager then considered all the facts placed before him and on 11th April 1994 dismissed Mr Smith on the grounds of his threatening and aggressive behaviour which was considered by the company to constitute gross misconduct. The appellant complained that:—

"I was further discriminated against on the grounds of my sex in that my employers chose to believe Ms Touhy rather than myself…"


The Complaint To The Industrial Tribunal.


Because the appellant had not been employed for two years, he was unable to bring any claim for unfair dismissal. Instead he brought his complaint under the Sex Discrimination Act 1975 stating his case to be:—

"I believe I have been subjected to unlawful sex discrimination contrary to the SDA in

a. Ms Touhy's allegations, which would not have been made against a gay woman

b. The conduct of my employers of the disciplinary process and the decision to dismiss me rather than Ms Touhy."


At the hearing of the complaint before the Industrial Tribunal, counsel on behalf of Mr Smith expanded his claim by adding a complaint of sexual harassment.


The Tribunals' Decisions.


At the hearing before the Industrial Tribunal, the tribunal, apparently at its own initiative, took the view that it preferred to hear legal argument on a preliminary issue. Seen with hindsight, that was an unfortunate decision. This case is a paradigm example of an attempt to shorten proceedings which results in their being prolonged and ultimately inconclusive in nine cases out of ten. I would discourage Industrial Tribunals from trying to identify preliminary points of law in cases in which the facts are in dispute and when it is far from clear what facts will ultimately be found by the Tribunal and what facts should be assumed to be necessary to form the basis of the proposed point of law.


The Industrial Tribunal identified the preliminary issue as one:

"concerning the claim by the applicant Mr Paul Smith that he has been discriminated against as a result of his dismissal from employment by the respondents, on the grounds of his sexual orientation, namely that he is a homosexual….The tribunal preferred to hear legal argument…on the preliminary issue as to whether we could entertain such a claim rather than take the evidence of the witnesses for the respondents and the evidence of the applicant on the factual elements. For the purposes of the argument, we have accepted the hypothesis that Mr Smith was sexually harassed by reason of his sexual orientation in employment and that he suffered less favourable treatment by reason of his sexual orientation when he was dismissed from that employment."

They came to this decision:—

"It is the unanimous decision of the tribunal that the applicant's claim of discrimination on grounds of his sexual orientation is not within the jurisdiction of the tribunal under the provisions of the Sex Discrimination Act 1975 and accordingly this claim is dismissed."


The appellant appealed to the Employment Appeal Tribunal. Their decision handed down on 13th February 1996 was that that the Industrial Tribunal had reached a correct decision. The appellant appeals to us with leave of the full court.


The Statutory Framework.


The following provisions of the Sex Discrimination Act 1975 are material (and I read sections 1 & 2 together.)

"1(1) A person discriminates against (a man) in any circumstances relevant for the purposes of any provision of this Act if —

(a) On the ground of (his) sex he treats (him) less favourably than he treats or would treat a (woman)…

5(3) 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.

6(2) It is unlawful for a person, in the case of a (man) employed by him at an establishment in Great Britain, to discriminate against (him) —


(b) by dismissing (him), or subjecting (him) to any other detriment."


The 11th Schedule to the Employment Protection (Consolidation) Act 1978 contained in paragraph 18 A(7) a definition of "sexual misconduct" in the context of the making of a restrictive reporting order where it means:—

"The commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed."


The Equal Treatment Directive 76/207/EOC provides:—

"Article 2(1)

For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on the grounds of sex either directly or indirectly by reference in particular to marital or family status.

Article 5(1).

Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.".


The European Commission's Recommendation on the Protection of the Dignity of Woman and Men at Work (OJ(L) 49/92) includes the implementation of a Code of Practice in which it is stated:—

"It is undeniable that harassment on grounds of sexual orientation undermines the dignity at work of those affected and it is impossible to regard such harassment as appropriate work place behaviour."


The Extended Reasons Given By The Industrial Tribunal.


Counsel for the appellant submitted to the tribunal that the reference in the Equal Treatment Directive to "family status" was apt to describe sexual orientation. She submitted that if a lesbian would not have suffered as the applicant had, then there would be unfair discrimination. She argued that in fact the true person with whom comparison has to be made ("the comparator") is a heterosexual woman. She also submitted that a homosexual male is in as unique a male gender category as a pregnant woman is unique in her condition.


Counsel for the respondent argued that the Act did not cover discrimination on the ground of sexual orientation: if Parliament had wished to include that it could easily have done so as it did when defining sexual misconduct in the 11th Schedule...

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11 cases
  • Lynda Clark, Advocate General V. Roderick Kenneth William Macdonald
    • United Kingdom
    • Court of Session
    • 1 June 2001
    ...argument was not really analysed or elaborated in any way. But reliance was of course placed upon Smith v. Gardner Merchant Limited [1999] I.C.R. 134 (C.A.), and in particular the observations of Ward L.J. at page 150. Reference was also made to Pearce v. Mayfield Secondary School [2000] I.......
  • MacDonald v Ministry of Defence
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    ...J in British Telecommunications Plc v Williams [1997] IRLR 668, 669. 17 In agreement with Ward LJ in Smith v Gardner Merchant Ltd [1999] ICR 134, 147-148, I respectfully think some of these observations go too far. They cannot be reconciled with the language or the scheme of the statute. T......
  • Pearce v Governing Body of Mayfield School
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    • Court of Appeal (Civil Division)
    • 31 July 2001
    ...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......
  • MacDonald v Ministry of Defence
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    • Court of Session (Inner House - Extra Division)
    • 1 June 2001
    ...JA, (Oxford) Ltd v GrahamWLR [2001] 2 WLR 1293 Salgueiro da Silva Mouta v Portugal (2001) Fam LR 2 Smith v Gardner Merchant LtdUNK [1998] 3 All ER 852 Smith and Grady v United KingdomHRC (1999) 29 EHRR 49 T, Petitioner 1997 SLT 724 Toonen v Australia IHRR vol 1, No 3 (1994) 97 Vriend v Albe......
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1 books & journal articles
  • Sexual Orientation Discrimination after Grant v South‐West Trains
    • United Kingdom
    • The Modern Law Review Nbr. 63-5, September 2000
    • 1 September 2000
    ...sexual orientation).169 Thus far, see Case T-264/97, D and Sweden vCouncil, 28 January 1999. In English law, see Smith vGardner Merchant [1999] ICR 134; for the principles which will have to be applied by domesticcourts in the light of the Human Rights Act 1998, see S. Grosz, J. Beatson & P......

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