Macdonald v Ministry of Defence

Factual and Procedural Background

The Appellant, a homosexual male aged 35, was initially commissioned in the Intelligence Corps (Territorial Army) and later served as an officer in the Royal Air Force, culminating in service at RAF Aldergrove. He transferred to the Scottish Air Traffic Control Centre (Military) at Prestwick for compassionate reasons, during which vetting procedures required him to declare his homosexuality. Following these declarations, he was compulsorily discharged under Queen's Regulation 2905, with his last paid day of service on 27 March 1997.

The Appellant made a timely application to the Industrial Tribunal alleging unlawful sex discrimination contrary to the Equal Treatment Directive 76/207/EEC and section 6 of the Sex Discrimination Act 1975 (SDA), as well as a claim for sexual harassment. Both claims were dismissed by the Employment Tribunal after hearings in July and September 1999.

The Tribunal found that while the interview conducted during vetting was distressing and intrusive, it was not sexually motivated harassment but part of a strenuous vetting process. It was undisputed that the Appellant’s dismissal was due to his homosexuality, but the Tribunal held that the SDA’s reference to “sex” pertains to gender, not sexual orientation, thus excluding the Appellant’s claim from the scope of the legislation.

Legal Issues Presented

1. Whether the term “sex” in the Sex Discrimination Act 1975 and the Equal Treatment Directive 76/207/EEC includes sexual orientation.
2. Whether the Employment Tribunal should refer a question of law to the European Court of Justice regarding the interpretation of “sex” in the context of sexual orientation.
3. Whether the Appellant’s claim of sexual harassment during the vetting interview constitutes unlawful discrimination under the SDA.
4. The appropriate comparator to be used in sexual harassment claims involving sexual orientation.
5. The impact of recent human rights jurisprudence, including the European Court of Human Rights decisions and the imminent effect of the Human Rights Act 1998, on the interpretation of the SDA.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that the term “sex” in the SDA should be interpreted to include sexual orientation, relying on recent European Court of Human Rights decisions (notably Smith & Grady and Salgueiro da Silva Mouta v Portugal) that recognized protection against discrimination on grounds of sexual orientation under Article 14 of the Convention.
• He submitted that courts should interpret domestic legislation compatibly with international human rights commitments, even before the Human Rights Act 1998 came into force, particularly when there is ambiguity in the statute.
• The Appellant contended that the comparator in sexual harassment claims should be based on sexual orientation (heterosexual vs homosexual), not solely on gender, to properly assess less favourable treatment.
• He argued against the requirement to exhaust domestic remedies before pursuing Strasbourg remedies, emphasizing the importance of aligning domestic law with evolving human rights standards.

Respondent's Arguments

• The Respondent maintained that the existing United Kingdom and European Court of Justice case law clearly restricts “sex” discrimination under the SDA to gender-based discrimination, excluding sexual orientation.
• They argued there was no ambiguity in the legislation and that the Convention should not influence interpretation prior to the Human Rights Act 1998 coming into force.
• The Respondent cited authorities including Perkins No. 2 and Pearce v Governing Body of Mayfield Secondary School, asserting that homophobic treatment affecting all homosexuals equally does not constitute sex discrimination.
• They contended the Appellant’s claim was legally incompetent under the current statutory framework.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the Appellant’s claim under the SDA and the Equal Treatment Directive, focusing on the interpretation of “sex” discrimination. The Tribunal below had held that “sex” referred strictly to gender, excluding sexual orientation, and thus dismissed the claim. The Court reviewed prior English and European case law, noting that the English courts had consistently interpreted “sex” as gender-based only.

However, the Court recognized new developments in human rights jurisprudence, particularly the European Court of Human Rights’ decisions in Smith & Grady and Salgueiro, which included sexual orientation within the scope of discrimination prohibited by Article 14 of the Convention. This created a statutory ambiguity concerning the meaning of “sex” in the SDA.

The Court applied principles of statutory interpretation, including the presumption that Parliament intends legislation to be compatible with international human rights obligations, especially where ambiguity exists. It referred to Scottish and UK authorities endorsing this approach.

On this basis, the Court held that the correct interpretation of “sex” in the SDA should include sexual orientation. Consequently, the Tribunal’s refusal to make a reference to the ECJ was justified at the time, given the then-prevailing law, but the Court found that the law had evolved.

Regarding sexual harassment, the Tribunal had applied a comparator based on gender and sexual orientation, as required by existing precedent, but the Court found this approach incorrect under the wider interpretation. The appropriate comparator involves comparing treatment of homosexual individuals with heterosexual individuals, regardless of gender. The Court also acknowledged that the intrusive interview could constitute sexual harassment under the SDA when sexual orientation is included.

The Court found no need for further fact-finding on credibility given the Tribunal’s detailed findings and relevant legal tests for harassment.

Holding and Implications

The appeal is ALLOWED. The Court quashed the Employment Tribunal’s decision and found that the Appellant was unlawfully discriminated against on grounds of sexual orientation under the Sex Discrimination Act 1975. The Court also held that the Appellant was subjected to sexual harassment under the same legislation.

The case is remitted to the Employment Tribunal to proceed with issues related to compensation. This decision extends the interpretation of “sex” discrimination under the SDA to include sexual orientation, marking a significant development in the law. However, no new binding precedent on the European Court of Justice was established, as the Court declined to make a reference, relying instead on human rights principles and statutory interpretation.