Friday 6 April 2001

Discrimination against homosexuals - the MacDonald decision


1. Discrimination against homosexuals - the MacDonald decision
2. Advertisement - job vacancy


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

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.


2. Job Advertisement


Orpington, Kent

are looking for a


for their forward looking Dispute Resolution Group

Minimum one year's experience
• expanding practice
• varied civil caseload
• private and publically funded work
CV to Thomas Dunton solicitors, 217/219 High Street, Orpington, Kent BR9 0NZ
Telephone 01689 822554

Tuesday 3 April 2001

Employee Consultation Rights Bill

The Employee Consultation Rights Bill has been published. It has little prospect of being enacted due to the imminent general election (unless re-adopted in the next session of parliament).

It provides an obligation for all employers with more than 50 employees to inform and consult workers (and their representatives) on "large business issues", including:
• developments relating to employment within the undertaking, including foreseeable redundancies; and,
• proposed decisions of the employer which are likely to cause significant changes to the organisation of work or to contracts of employment.
The obligation to inform extends to providing "information on all relevant facts".

An obligation of confidence is imposed on the workforce representatives, who are prohibited from disclosing information to others. The Bill provides that breach of the confidentiality requirement is "actionable at law". If the employer says information is confidential (and thus cannot be disclosed by the workforce representatives), the representatives can apply to the CAC for a declaration as to whether the information is truly confidential.

The penalty for failing to inform and consult, or for providing inadequate or inaccurate information, is that each affected employee shall be paid a 'protective award' of four weeks' gross pay on application to an employment tribunal.

The Bill can be found at

Monday 2 April 2001

New Acquired Rights Directive - 2nd message

Further to my bulletin of 23rd March 2001 (reproduced below), the Acquired Rights Directive 2001 appeared in the Official Journal on 22nd March 2001. It therefore comes into force on 11th April 2001. Thanks to all those who Emailed me with the date.

Henry Scrope, who is responsible for the excellent site, has put together a table comparing the old and new Acquired Rights Directives. It can be accessed via his commentary page on . Although access to the site normally costs £5+VAT for a 24-hour password, he is offering 24-hour passwords free of charge. Readers can obtain a free trial password by Emailing .