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Ruth Harvey is an employment specialist at Barnett Alexander Chart, solicitors.
As someone from Cornwall I find it hard to envisage the county initiating European social change. However that is exactly what the Truro Industrial Tribunal has done in the course of Re P versus S & Cornwall County Council.
The facts about P are simple: P changed sex from male to female and, when dismissed from a job with the local authority, claimed protection by the Equal Treatment Directive (205/76). The respondent pleaded redundancy (by which the Industrial Tribunal was not entirely convinced) and denied sex discrimination.
The tribunal in question made reference to the European Court of Justice on the scope and application of the 1976 Equal Treatment Directive (ETD).
The key question for the ECJ was whether transsexuals are within the scope of the directive and protected by European Community Law, despite there being no provision covering transsexuals in the Sex Discrimination Act.
In his opinion dated 14 December 1995, Advocate General Tesauro, acknowledging that he was asking that the court take a "courageous" decision, recommended a broad interpretation of the directive, and that P be protected.
In a 15-page judgment, the Advocate General acknowledged that sex was an important "social parameter", and that discrimination was principally based on social rules or stereotypes. It did not matter that transsexuals are a small minority or that the original directive did not envisage that transsexuals were covered. Nor was it acceptable that a female-male transsexual had also been dismissed. The essence of the sex-based discrimination was that P would not have been dismissed if she had remained a man. In the ECJ's judgment of 30 April 1996, the ECJ followed the Advocate General's opinion. The implications of the judgment are as follows:
transsexuals are protected in the public sector;
the Sex Discrimination Act must be construed in accordance with Re P;
the argument that P was not discriminated against if a female to male transsexual would also have been dismissed, was rejected;
any transsexuals who have suffered loss due to historical dismissals, may be able to make claims for wrongful implementation of EC law.