Sexual orientation and the law

Susan Mayne examines the changes in attitudes and the law towards the position of homosexuals Background There has been a sea change in attitudes towards homosexuality over the last decade which has been reflected in legislation. The legal difficulty for homosexuals has been in arguing that they can invoke current discrimination law since, as presently stands, EC and UK law do not prohibit discrimination on the ground of sexual orientation.

Over 10 years ago, in the case of Saunders v Scottish National Group 1987, Mr Saunders, a maintenance handy man, who worked at a children’s camp was found to have been fairly dismissed because he was actively homosexual. His dismissal letter stated “the reason is that information was received that you indulge in homosexuality. At a camp accommodating large numbers of school children it is totally unsuitable to employ any persons with such tendencies”. Despite a psychiatrist testifying in Mr Saunders’ favour and the fact that there was no evidence to show any impropriety, the EAT found that Mr Saunders’ dismissal was for a substantial reason and fair.

Some 10 years on, public thinking and attitudes have changed perceptibly. In Fitzpatrick v Sterling House Association 1999, the House of Lords found by a majority of 3:2 that for the purposes of the Rent Acts, a homosexual partner of the deceased tenant was “family”. Mr Fitzpatrick had been a long term and devoted partner of the deceased who was a protected tenant of the flat in which they both lived. After nursing his partner for over 10 years, Mr Fitzpatrick found himself without any protection and facing eviction by the landlords when his partner died. Whether or not he was able to remain in their flat turned on whether his relationship to the deceased could be construed as “family”. By a narrow majority, the House of Lords decided in his favour.

Harassment

If a gay employee is harassed by other employees on the basis of his sex (as opposed to his sexual orientation) he may be able to seek redress against his employer and the harassing co-worker under the sex discrimination legislation. He may refer to the EC code of practice on sexual harassment which specifically refers to harassment on the basis of sexual orientation. Whilst the EC code is not binding a tribunal may take provisions of the Code into account when considering complaints of sex discrimination. The EC code states “a range of behaviour may be considered to the constitute sexual harassment. It is unacceptable if such conduct is unwanted, unreasonable and offensive to the recipient”. It further provides “sexual attention becomes sexual harassment if it is persisted in once it had been made clear that it is regarded by the recipient as offensive”.

In the case of Mrs Porcelli, the complainant was an unpopular female employee who was subjected by two male colleagues to sexually offensive comments and innuendo. When she claimed sex discrimination her colleagues tried to argue that they would have treated a man in exactly the same way - the treatment of Mrs Porcelli was not because she was a woman but because she was unpopular. This argument did not succeed - the tribunal held that the nature of the abuse was based on Mrs Porcelli’s sex and therefore unlawful.

Serious acts of harassment may also be protected under the criminal law, irrespective of the sex or sexuality of the complainant. The Criminal Justice and Public Order Act 1994 inserts clause 4A into the Public Order Act 1986, providing that a person is guilty of an offence if, with intent, he uses threatening abusive or insulting words or behaviour or disorderly behaviour or displays any writing, sign or visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment alarm or distress.

A complainant has to show that the perpetrator intended to cause harassment. The offence can be committed in a public or private place (which includes the workplace) but not a private dwelling. The penalty is a maximum of imprisonment of up to 6 months and/or a fine not exceeding £5,000.

A victim of harassment may also use the Protection from Harassment Act 1997, commonly known as the anti stalking Act. This Act provides that it is unlawful to pursue a “ course of conduct” which causes another person harassment, alarm or distress in circumstances where a reasonable person would feel harassed. The Act provides for both civil and criminal offences. There are two criminal offences - the offence of harassment (a maximum of 6 months imprisonment and/or a fine of £5,000) and the offence of putting people in fear of violence (5 years imprisonment and/or fine). A complainant may also bring a civil action for damages based on anxiety and financial loss.

The common law may also be used to address bad treatment from colleagues or management at work. An employer has a duty of care to ensure the health and safety of his employees and to provide a safe system of work. If an employer turns a blind eye to harassment of a homosexual employee by his colleagues or others with whom he comes into contact whilst at work he may be liable in the tort of negligence. It is arguable that harassment should be regarded as reasonably foreseeable hazard which the employer should take reasonable steps to prevent.

Case law

As stated above, the difficulty for homosexuals has been in trying to stretch the sex discrimination legislation to cover sexual orientation which, as presently drafted, it does not. In Grant v South West Trains 1998, Ms Grant, a clerical worker for South West Trains, applied for and failed to receive a Privilege Pass for her long term partner, Jill Percey. The policy of South West Trains provided that “Privilege tickets are granted for one common law spouse (of the opposite sex)”. SWT’s equal opportunities policy (which was referred to in the contracts of employment) provided, however, “ we are committed to ensuring that all individuals are treated fairly irrespective of.... sexual preference”.

Miss Grant claimed that the equal opportunities policy was incorporated into her contract of employment and that, by applying it properly, all benefits (including the pass) should be offered to all staff and partners, irrespective of sex or sexual preference . This claim was rejected on the basis that the policy was a statement of policy and not a contractual obligation.

Miss Grant also claimed that failure to provide her partner with a Privilege ticket was discrimination based on sex prohibited by Article 119 of the Treaty of Rome (now Article 141 of the Treaty of Amsterdam) and the Equal Treatment Directive. The ECJ said that community law as it stands at present does not cover the discrimination based on sexual orientation. Stable relationships between two persons of the same sex are not regarded as equivalent to marriages or stable relationships outside marriage between persons of the opposite sex and Miss Grant’s claim failed.

In Smith v Gardner Merchant 1998, Mr Smith, a homosexual barman, clashed with a fellow colleague Miss Touhy. Prior to working with Miss Touhy he had a good employment history. Miss Touhy allegedly made homophobic remarks about Mr Smith, commenting that gay people with Aids should be put on a desert island. She reported him for threatening and aggressive behaviour. Mr Smith was suspended and following an investigation, dismissed. He brought a claim for sex discrimination and shortly before his appeal to the Court of Appeal the ECJ passed their judgment in Grant (see above). Mr Smith framed his claim to argue that the treatment of him was based on his sex. The Court of Appeal agreed and said that whilst the lower courts had been right to say that there was a difference between discrimination on the grounds of sex and on the ground of sexual orientation, by focusing on Mr Smith’s homosexuality, they had failed to make a comparison between his position as a man and the comparative position as a woman. The right approach would be to ask whether the abuse from Miss Touhy was less favourable treatment than would have been meted out to a homosexual woman in a similar position to Mr Smith. The tribunal should also look at whether the managers decided to dismiss Mr Smith rather than Miss Touhy because he was a man.

In Lustig Prean & Another v UK and Smith & Grady v UK all the complainants were army personnel with impeccable service who were dismissed simply because of their homosexuality.

The MOD policy provided that “homosexuality is incompatible with service in the armed forces. Service personnel who are known to be homosexual or who engage in homosexual activity are administratively discharged from the armed forces”.

All four applicants were subjected to protracted prurient questioning after they had admitted their homosexuality. The questioning went on for extremely long periods of time in a hostile and unpleasant atmosphere. For example, Ms Smith was asked whether she and her female partner had a sexual relationship with their foster daughter and whether she was into “girlie games” like netball and hockey.

Faced with the decision in Grant, all four applicants brought claims not under sex discrimination legislation but under the European Convention of Human rights (“ECHR”).

The European Court found that the investigations into the applicants’ sexuality which led to their discharge was an interference with their right to respect for their private lives under the ECHR (Article 8). The European Court then considered whether the applicants’ treatment constituted “degrading treatment” under Article 3 of the ECHR but decided that the treatment, whilst offensive, did not reach the minimum level of severity.

The European Court further considered whether the applicants’ right to freedom of expression under Article 10 had been breached. The European Court said that whilst the silence imposed on the applicants with respect to their sexuality could be interference with freedom of expression, the subject matter of the policy was sexual orientation which was an essentially private manifestation of human personality. In any event, the freedom of expression was subsidiary to the right for respect of their privates lives under Article 8. Finally, the European Court considered whether there had been an effective remedy under Article 13 before a national authority in relation to the violation of the applicants’ rights. It had considered the earlier domestic judicial review proceedings of the MOD policy did not constitute an effective domestic remedy as the sole question was whether the policy was irrational. This threshold was placed too high.

Following this case, the ban on homosexuals in the army was regarded as no longer legally sustainable and a new Code was introduced which applied regardless of rank, gender or sexual orientation. At the heart of the Code is what the MOD calls the “service test”, i.e. “have the actions or behaviour of an individual adversely impacted on or are they likely to impact on the efficiency or operational effectiveness of the service”.

The future

The EC has adopted an initiative aimed at combating discrimination generally in the labour market. The initiative is based on trans-national corporation and has a multi dimensional approach. Legislation is a key component but there is also a targeted action plan to change practices and attitudes. One of the proposals is a directive prohibiting discrimination in employment outlawing discrimination on grounds of, amongst other matters, inter alia, sexual orientation. Once passed, the directive will immediately become binding on EU member states, allowing individuals to bring claims against government and other state bodies. A date will also be set requiring member states to pass domestic legislation bringing it into force.

The main objectives of the complementary action programme are to:

evaluate the extent and nature of discrimination and the effectiveness of measures to combat it and to build the capacity of bodies who fight against discrimination

encourage opinion formers to promote the fight against discrimination. It is clear that employers should start reviewing their policies and procedures to ensure that they are well prepared for the introduction of the new legislation. Most importantly employers should be aware of the seriously detrimental effect any form of discrimination can have in the work place and should start developing effective measures to deal with it.