MacDonald v Advocate General for Scotland

Factual and Procedural Background

Two joined appeals were heard by the House of Lords on 19 June 2003.

• First Appellant v. Respondent A (Scotland): The First Appellant, a member of the Royal Air Force, was dismissed after admitting that he was attracted to men. His dismissal was based on a now-abandoned policy prohibiting homosexual service. He claimed that the decision constituted unlawful sex discrimination under the Sex Discrimination Act 1975 (“the 1975 Act”). After adverse findings in the lower tribunals, he pursued successive appeals that ultimately reached the House of Lords.
• Second Appellant v. Respondent B: The Second Appellant, a teacher, identified as a lesbian and was subjected to homophobic harassment by pupils at the school. She alleged that the school’s governing body failed to protect her and that this constituted sex discrimination contrary to the 1975 Act. Her claim was rejected at first instance and in the Employment Appeal Tribunal, after which she appealed to the Court of Appeal and then to the House of Lords.

Legal Issues Presented

1. Whether dismissing a male service member who is attracted to men amounts to unlawful sex discrimination under the 1975 Act.
2. Whether harassment of a lesbian teacher by pupils, and the school’s response to it, constitutes sex discrimination for which the employer is liable.
3. The correct identification of a statutory comparator under sections 1 and 5 of the 1975 Act when sexual orientation is involved.
4. The extent to which sexual harassment can be treated as sex discrimination without a statutory comparator.
5. The relevance of the Human Rights Act 1998 and European human-rights jurisprudence to interpretation of the 1975 Act.

Arguments of the Parties

Appellants' Arguments

• The First Appellant contended that a female service member who was attracted to men would not have been dismissed, so his less favourable treatment was necessarily “on the ground of sex.”
• The Second Appellant argued that she would not have suffered the same harassment “but for” her sex; the pupils’ conduct constituted sexual harassment for which the employer was liable.
• Both Appellants submitted that the 1975 Act should be construed purposively, informed by the Human Rights Act 1998 and European Court of Human Rights decisions condemning discrimination against homosexuals.

Respondents' Arguments

• Respondent A asserted that the relevant comparator for the First Appellant was a female service member attracted to women; because such a person would also have been dismissed under the former policy, no sex discrimination arose.
• Respondent B maintained that the pupils’ harassment was based on the teacher’s sexual orientation, not her sex, and therefore did not fall within the scope of the 1975 Act; furthermore, any liability for pupils’ actions must be strictly construed.
• Both Respondents argued that extending the Act to cover sexual-orientation discrimination would impermissibly rewrite the statute.

Table of Precedents Cited

Court's Reasoning and Analysis

The Appellate Committee, comprising Judge Nicholls, Judge Hope, Judge Hobhouse, Judge Scott and Judge Rodger, analysed the appeals under the framework of the 1975 Act.

• Statutory Framework: Section 2 extends the Act’s protection to men; sections 5(3) and 6(2) prohibit discrimination in employment. The court emphasised that a comparison must be made “in the same circumstances.”
• Comparator Question: For the First Appellant, the Committee considered whether the correct comparator was a heterosexual woman attracted to men (as he was), or a homosexual woman attracted to women. Competing submissions were evaluated, including the statement that a privileged or “odious” rule directed at homosexuals should not be allowed to defeat the Act’s purpose.
• Sexual Harassment: In the Second Appellant’s case, the Lords reviewed earlier authorities where the sexual element of harassment was extracted from broader misconduct. Arguments relying on Burton v De Vere Hotels and Porcelli were scrutinised to decide whether an explicit comparator was necessary.
• Human Rights Context: Although Respondent A no longer attempted to justify the dismissed policy after Smith and Grady and Lustig-Prean, the Committee still assessed whether the absence of justification converted the dismissal into sex discrimination under domestic law.
• Policy Considerations: The judgments discuss Parliament’s specific intention to outlaw discrimination on grounds of sex, noting that explicit protection for sexual orientation was enacted separately at a later date. The Lords considered whether judicial extension of the 1975 Act would conflict with legislative intent.

Holding and Implications

This information was not available in the provided opinion.