1. Discrimination against homosexuals - the MacDonald decision
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1. Discrimination against Homoseuxals
The Scottish Court of Session has overturned the controversial decision of the EAT in Secretary of State v MacDonald.
The EAT decided as follows (from bulletin 2/10/2000):
The EAT has departed from previous authorities which hold that discrimination against homosexuals does not fall within the Sex Discrimination Act 1975.
It held that the word 'sex' in the Sex Discrimination Act 1975 is ambiguous - potentially including sexual orientation as well as gender. Despite the previous authorities to the contrary, it held that it is obliged to look at rights under the European Convention of Human Rights when, in two recent cases (Lustig-Prean and Salgueiro da Silva Mounta v Portugal), the European Court held that discrimination against homosexuals offended articles 8 (right to respect for privacy) and 14 (right not to be discriminated against when enjoying Convention rights) respectively.
Due to these new authorities, it was time to reconsider the traditional UK approach.
Accordingly, when considering a case of discrimination against a homosexual employee, the correct comparator under the Sex Discrimination Act 1975 is now a heterosexual (be it male or female) rather than a homosexual of the opposite gender.
The Court of Session has restored the orthodox approach in its decision of 1st June 2001, rejecting arguments that the Sex Discrimination Act 1975 can be used to bring claims based on sexual orientation.
All three judges considered that the word 'sex' in the Act meant 'gender', and there was nothing in the European Convention of Human Rights to indicate otherwise. The EAT had overstated the impact of the ECHR.
An important point was identifying the correct comparator. The majority thought that the correct compator with a gay man should be a lesbian. The dissenting judge thought that the comparator with a gay man should be a woman who was also sexually attracted to men. The majority, in considering that the correct comparator was a lesbian, held that Mr MacDonald had not been treated less favourably and therefore rejected his claim.
The decision can be downloaded from http://www.scotcourts.gov.uk/opinions/XA172_00.html
The Court of Session has departed from the EAT's decision, which appeared to be governed as much by laudable conceps of political correctness than strict application of legal principles. This, of course, is one of the arguments in favour of having two lay members sitting on the EAT (it is also one of the arguments against!)
Whilst this decision will be a blow for the rights of homosexuals in the workplace, the government is obliged to introduce legislation prohibiting discrimination on grounds of sexual orientation by December 2003 under the Equal Treatment Framework Directive.
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