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Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003] UKHL 34

Human Rights - Homosexuals - Homosexual man dismissed by RAF - Lesbian school teacher subjected to homophobic abuse by pupils - Discrimination on ground of sex meant on ground of gender not of sexual orientation - Proper comparator was person of opposite sex who was also homosexual - Sexual harassment did not of itself constitute sex discrimination - Appellants failed to establish harassment on ground of sex - School’s failure to protect from harassment did not constitute sex discrimination - Appellant could not rely on breach of convention rights because conduct occurred before Human Rights Act 1998 - Sex Discrimination Act 1975, ss 1(1)(a), 5(3)

1 July 2003

The appellant M served in the Royal Air Force until he was dismissed because he admitted he was a homosexual. He applied to the employment tribunal for compensation for unlawful discrimination and sexual harassment consisting of personal and intrusive questioning about his homosexuality. The tribunal dismissed his application. The Employment Appeal Tribunal allowed his appeal ([2001] ICR 1). The Court of Session restored the order of the employment tribunal ([2002] ICR 174). M appealed to the House of Lords. The appellant P was a teacher who was subjected to a campaign of verbal abuse by pupils because she was a lesbian. She applied to the employment tribunal seeking compensation from the school for failing to prevent the harassment by pupils. The tribunal, EAT and Court of Appeal ([2001] EWCA Civ 1347; [2002] ICR 198 dismissed her claim. P appealed to the House of Lords. ISSUE (1) Whether the appellants had suffered direct discrimination within s 1(1)(a) of the Sex Discriminatio...

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