Barrister – On behalf of Jeffrey, we are claiming for unfair dismissal.
Unfair dismissal, in accordance with the Employment Rights Act 1996, section 104 (1) (b), can be defined as ‘an employee who is discriminated shall be regarded for the purposes of this part as unfairly dismissed if the reason for the dismissal is that the employee alleged that the employer had infringed a right of his which is a relevant statutory right’.
Section 94 (1) states that ‘an employee has the right not to be unfairly dismissed by his employer’.
In order for dismissal to be fair, four criteria need to be met, in accordance with section 98 (2) of the Employment Rights Act 1998. However, in our view, theses criteria have not been met.
The dismissal was based on Jeffrey’s sexual orientation. This is covered by the Employment Equality (Sexual Orientation) Regulations 2003, which have recently been implemented within our justice system. To explain and outline this area of law, I would like to call an expert witness.
Barrister – Why were the regulations introduced?
Expert – They were introduced to prevent discrimination in employment and vocational training on the grounds of sexual orientation. They apply to recruitment, terms and conditions, transfers, promotion, training and dismissal.
Barrister – So what is sexual orientation exactly?
Expert – Sexual orientation is covered under regulation 2 (1) and it is an orientation towards (a) people of the same sex (homosexuals), (b) people of the opposite sex (heterosexuals) and (c) people of the same and the opposite sex (bisexuals).
Barrister – And what kinds of discrimination do they outlaw against?
Expert – They cover direct discrimination, indirect discrimination, harassment and victimisation.
Barrister – In your opinion would you say that Jeffrey has been discriminated against? And if so, which kind?
Expert – Yes, I do think that he has been discriminated against.
I would say that it is a case of direct discrimination. Regulation 3 (1) (a) states that ‘a person discriminates against another person if; on grounds of sexual orientation, he treats them less favourably than he treats or would treat other persons’.
It is clear that the head teacher has treated Jeffrey less favourably by terminating his contract at the school, because of his sexual orientation (because he is a homosexual) and he would not have been dismissed if he were a heterosexual.
Barrister – Do the regulations cover Jeffrey’s occupation?
Expert – Yes they do. Jeffrey is, or was, working under a contact, as the caretaker of the school. Regulation 8 (1) (b) states that ‘it is unlawful for a principle, in relation to contract work, to discriminate against a contract worker, by not allowing him to do it or continue to do it’.
Barrister – The opposition are arguing that because the Church of England school is a religious organisation, they cannot be accused of discrimination. Is this right?
Expert – They are relying on Regulation 7 (1) (c) that ‘In relation to discrimination falling within regulation 3 (discrimination on the grounds of sexual orientation) – regulation 6 (2) (d) (which you are claiming) does not apply to dismissal from any employment, where paragraph (2) or (3) applies.
Regulation 7(3) which the opposition are basing their argument on, contains three subsections which all have to be satisfied, and I feel none of them have been. I will explain why.
The first is that ‘the employment is for purposes of an organised religion’. However, in my opinion the school is an establishment of a religious character. It is not an actual religious organisation. It is therefore not covered.
The second is that ‘the employer applies a requirement related to sexual orientation – either ‘to comply with the doctrines of the religion’, or ‘because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers’.
In regard to the doctrine of the religion, the Christian religion has relaxed its views on homosexuality over the years. It recognises the different views of homosexuality and that Christians should reject all forms of hatred towards homosexual people and protect them from being victimised. The doctrine therefore does not require the exclusion of homosexuals.
As to the nature of employment and context in which it is carried out, Jeffrey is a caretaker at the school not a teacher. He is not teaching or inflicting his views onto others, and will not have a huge influence on the children, as a teacher would.
In O’Neil v Governors of St Thomas Moore RCVA Upper School and Bedfordshire County Council (1996), an unmarried religious education teacher at a Catholic school became pregnant by a local priest. She was dismissed and it was held to be fair. However, it has been argued that the fact that she was a teacher might have been the determining factor in deciding the dismissal was fair. I quote, ‘Since the particular context in which an employee’s occupational activities are carried out is so important, the teacher would have had a stronger case had she worked in the school’s kitchens, never coming into contact with the children, rather than teaching religious education to children attending a Roman Catholic School’.
I think this section is intended for members of the clergy or teachers. In other words those representing the religion, rather than those just working at the establishment.
Lastly, it must be shown that ‘the person to whom that requirement is applied does not meet it’, or ‘the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it’.
As established, the Christian ethos is now more relaxed with regard to homosexuality. Therefore, it is not satisfactory or reasonable for the Head teacher and board of Governors to project sexuality as a strongly held religious conviction.
Regulation 7(3) of the regulations is therefore not satisfied, so they should not be granted the exemption.
Barrister – The regulations have only just come about. Are they predicted to make a big difference to the law regarding sexual orientation?
Expert – Yes, a huge difference. Many other cases have been unsuccessful, as there has been no protection against discrimination on the grounds of a person’s perceived or actual sexual orientation. For example, the recent case of Macdonald v Ministry of Defence.
Barrister – What happened in that case?
Expert – Mr Macdonald was a member of the Royal Air Force. After he had been there for 7 years he took part in a security vetting interview, where he was questioned on all aspects of his lifestyle. He was subsequently dismissed from the RAF, under the policy that homosexuality was inconsistent with being in the armed forces.
He claimed for sex discrimination under section 1 (1) (a) of the Sex Discrimination Act (1975).
However, it was held by the House of Lords that this Act was limited to preventing discrimination on the grounds of gender (i.e. comparing himself to a lesbian woman in the same position) and that it did not extend to preventing discrimination on the grounds of sexual orientation (i.e. comparing himself to a heterosexual male in the same position). He was therefore claiming for a ground that was outside the scope of the legislation.
Barrister – But this has changed now?
Expert – Yes. Sexual orientation is now covered, rather than just gender. So, people can now compare themselves to the appropriate comparator. A heterosexual male or female.
Barrister – So, do you think it would have been decided differently if the regulations had been in force.
Expert – It is highly likely. This was illustrated in Pearce & Macdonald (2003) by Lord Roger of Earlsferry. I quote, “once in force, that legislation will provide remedies in the United Kingdom to persons, such as the appellant, who complain of discrimination on the ground of their sexual orientation in relation to their employment”.
Barrister – So, someone like Jeffrey?
Expert – Yes.
Barrister – You mention Pearce. Is that case relevant?
Expert – Pearce v Governing Body of Mayfield School (2001) is another case illustrating a failed attempt at proving discrimination, on the grounds of sexual orientation, because the Sex Discrimination Act did not cover it. As I have said, the outcome would likely be different today with the regulations in force. However, I do not feel this case is relevant. Mrs Pearce, a school teacher, suffered taunts and verbal abuse as a result of her sexual orientation, which led to her retirement on grounds of ill health. This is a case concerning harassment, which I do not feel the issue of Jeffrey’s case is.
Barrister – The school is claiming that having a homosexual member of staff is against the Christian ethos of the school. Shouldn’t this have been made clear to him earlier?
Expert – Yes, this should have been made clear to him before he was recruited. If it was so important then it should have been made expressly clear to him. Jeffrey is an ‘active’ member of the towns gay community association. As he has explained, his sexual orientation was not kept a secret. The Head Master should not have employed him in the first place if it is against the Christian ethos of the school. The onus does not lie with Jeffrey to express his sexual orientation, it is the schools duty to express that it was prohibited.
Barrister – Are there circumstances where the regulations will not be taken into account?
Expert – Yes. In X v Y (2003) an employee who worked with children was arrested and convicted for taking part in homosexual offences in a public toilet. It was therefore held that his dismissal was fair and it is likely it would be even with the regulations n force. However, Jeffrey has not been caught in any compromising positions and he has no previous convictions.
Barrister – Thank you
We are now going to deal with the issue of Human Rights.
All people are born free and equal in dignity and rights Article 1 of the universal Declarations. Equality should be the cornerstone of all democratic states. In relation to these issues we believe that Jeffrey’s fundamental human rights has been breached under Article 8 in conjunction with Article 14 under the Human Rights Act 1998. Article 8 and 14 impose positive obligations on the state to secure for its citizens the enjoyment of the rights contained in the convention. In addition there is a negative obligation on Member states to refrain from conduct that infringes those convention rights. By entering the field of legislation in areas where European Convention rights are engaged, the state obliges itself to act in conformity with the positive obligations concerned. When rights of high consititutional importance, such as freedom from discrimination, are concerned, courts should not shrink form their role, as we should not in the case before us today.
Article 8 of the Human Rights Act Provides that
1) Everyone has the right to respect for his private and family life, his home and his correspondance. Our client was dismissed from St Augustines School purely on the basis that he is a homosexual. Private life is linked with issues of personal autonomy and development and gives the right to establish and develop relationships with other human beings. Our clients Sexual orientation is an intimate aspect of his private life thus is covered in part 1 of Article 8 of the convention rights.
Article 8 imposes a negative duty on the state not to interfere with Jeffrey’s private life! Therefore the governing body of St Augustines is breaching convention rights under Article 8 on the basis that, by bringing Jeffrey’s homosexuality under scrutiny effectively leaves him with an ultimatum; to choose between his personal/ private life and his working life which should be treated as separate entireties. Jeffrey’s private life does not effect his working capacity or role and has no relevance to his employment. By dismissing him on this basis alone surely shows an interference with Jeffrey’s private life.
A series of cases highlight and support our argument for the violation of Article 8 of the Convention, namely Lustig- Prean and Beckett v UK (1999). In relation to this case, in its principal judgement the European Court of Human Rights held unanimously that there had been a violation of Article 8 (right to respect for private life). The Court was of the view that the investigations by the military police into the applicants’ homosexuality, which included detailed interviews with each of them and with third parties on matters relating to their sexual orientation and practices, together with the preparation of a final report for the armed forces’ authorities on the investigations, constituted a direct interference with the applicants’ right to respect for their private lives. Their consequent administrative discharge on the sole ground of their sexual orientation also constituted an interference with that right. There was also held to be a violation of Article 8 in the case of Smith and Grady v UK (1999).
Article 14, the prohibitation on discrimination is invoked in relation to Article 8 of convention rights. Article 14 provides that: The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race , colour , language, religion, political or other opinion, national or social origin, association with a national minority, property , birth or other status. It is clear from European court of Human rights case law that this list is non-exhaustive. Although Sexual Orientation is not listed the ECHR has indicated it can be read into the provision and covered by the convention.
In relation to Jeffrey’s case and article 14 what must First be established is whether Jeffrey has been treated differently. Jeffrey who has been discriminated against because he is a homosexual has been treated less favourably than a heterosexual in the same situation. This difference of treatment has no objective and reasonable justification nor is it proportionate to the legitimate aim and would therefore come within the ambient of discrimination against sexual orientation under article 14.
In a similar Case, Salguerio da silva v Portugal, the European Court of Human rights found that discriminatory treatment on the grounds of sexual orientation violated Article 14. The applicant a gay man was denied custody of his biological child. It was clear that his sexuality was the determinative factor. The applicant claimed that a difference of treatment had no objective and reasonable justification. The Court concluded that as his homosexuality was the deciding factor in this case the measure taken was disproportionate and the difference in treatment violated Article 14.
Barrister – I am now going to call an expert on human behaviour. In your opinion, do you have any reason to believe that children who come into contact with homosexuals can be adversely affected in any way?
Psychologist – If you mean, is there a likelihood that they will be influenced to become homosexuals themselves, then absolutely not. There has been no evidence to at all to suggest this, as being a homosexual does not mean that you will pass on your sexuality to others around you. It is not contagious.
Barrister – Do you feel there is any need therefore to protect the children of St Augustine’s school from Jeffrey, as suggested by our opposition?
Psychologist – To protect them from what exactly?
Barrister – Well, firstly, whether he will harm the children?
Psychologist – There is nothing to suggest that Jeffrey is capable or has any intention of harming the pupils. No more so than any other member of staff.
Barrister – Secondly, the head teacher and the board of governors has suggested that actions such as Jeffrey’s break in are a result of his sexual orientation and that these actions may be followed up in the school environment. Therefore, do the children need to be protected from such things?
Psychologist – There is no evidence to suggest that the break in had anything to do with Jeffrey being a homosexual. There was no vandalism or graffiti indicating that it was a homophobic attack. Also, the only people who had access to Jeffrey’s flat were the members of the Gay Community Association, so it is unlikely that it was sexually motivated, just a breach of trust.
Therefore, since the likelihood is that it was not sexually motivated, it is unlikely that Jeffrey would be the target of further attacks, and it would not follow him to the school, and so would not put the children in any danger.
Barrister – In the case of Saunders v Scottish National Camps Ltd (1980), the tribunal took the employers view that there was a possible risk to children. Why is this case different?
Psychologist – The case of Saunders involved a homosexual male who was an employee at a children’s camp. The employers believed that he posed a genuine possible risk to children and the tribunal accepted this view. However, they stated that homosexual tendencies were ‘some other substantial reason for his dismissal’. Therefore, he was not actually dismissed simply on the ground that he was a homosexual. Saunders had been caught with the boys at night on two occasions, so this largely contributed to their decision.
The difference with Jeffrey’s case is that his dismissal is based solely on the fact that he is a homosexual. He has never been caught in a compromising or inappropriate situation, with the pupils or with anyone else, and his employment duties have never been affected by his sexual orientation.
Barrister – It was also stated in Saunders that he should not have been employed in a close proximity with children. Do you think this should apply to homosexuals generally? Like Jeffrey for instance?
Psychologist – No definitely not. As I have already said, homosexuals do not pose a threat to children and they should not be denied contact. In today’s society, homosexuals are able to, and often do, adopt children. Surely this is the closest form of proximity that you can get. A survey conducted in America, by the Evan Donaldson Adoption Institute showed that 60% of adoption agencies are now accepting applications from homosexuals and researchers found that 40% of these agencies place children with those parents. Therefore, if there was any evidence to show that homosexuals would be inappropriate parents, these agencies would not encourage such adoptions.
Barrister – Thank you.
We believe that Jeffrey should be reinstated and should receive compensation for loss of earnings.
