Should Act include sexual orientation?

A man who says he was harassed at work is claiming discrimination under the Sexual Discrimination Act, reports Roger Pearson.

Judgment in the Court of Appeal is pending in a legal test case which could have major implications for gay workers.

London barman, Paul Smith, who claims he was discriminated against on the basis that he was homosexual, has challenged rulings by an industrial tribunal and the Employment Appeals Tribunal (EAT) that he is not legally entitled to claim discrimination on the basis of his homosexuality.

The industrial tribunal and the EAT held that discrimination on the basis of a person's sexual orientation as opposed to their gender is not covered by the Sex Discrimination Act.

Smith claimed that he came up against harassment from a female colleague who made comments about homosexuals carrying diseases, claimed that people like Smith should be put on an island together and, on occasions, had punched him.

He claims that when he complained his employers failed to deal with his complaint properly and ultimately sacked him.

It is argued that the interpretation of the law by the earlier tribunals leaves homosexuals unprotected by discrimination laws if the discrimination they complain of relates to their sexual orientation rather than their gender.

Laura Cox QC, representing Smith, told the Court of Appeal in what she said was the first case of its kind to reach court: "We say that you cannot divorce someone's sexual orientation from his or her sex. Our submission is based on the proposition that even where someone's complaint is that they have been discriminated against by reason of their sexual orientation, that in itself means they have been discriminated against on the grounds of sex.

"It raises the important issue of whether sexual harassment and other detrimental treatment of a person for reasons relating to their sexual orientation should be regarded as contravening the Sexual Discrimination Act," she said.

The court was told that, while there has been no investigation of the validity of Smith's allegations because of the earlier rulings, the company claims Smith's dismissal was on the basis of misconduct and not because he was homosexual.