Employment law

Homophobic abusePearce v Governing Body of Mayfield School, The Times, 19 April 2000A lesbian teacher suffered homophobic taunts and abuse by pupils.

She claimed her employers had unlawfully discriminated against her on the ground of sex.

It was common ground that the Sex Discrimination Act does not protect male or female homosexuals against such harassment or abuse: Smith v Gardner Merchant Ltd (1999) IRLR 134.

Such conduct can, in certain circumstances, be both discrimination on the ground of sex and on the ground of sexual orientation.The Employment Appeal Tribunal (EAT) accepted the employer's submission that the use of gender-specific words, such as 'lesbian' or 'dyke', was not sufficient to create automatic discrimination on the ground of sex.

If to call someone a lesbian was automatically discrimination on the ground of sex because a lesbian could only be a female homosexual and a male homosexual was not called a lesbian, that elevated lesbianism into a unique feminine condition, like pregnancy, not available to a man.But such an argument was expressly rejected in Smith.

The employment tribunal had taken the view that, if there had been sex discrimination, then the school was directly liable for it.

The school took that obiter conclusion seriously and wished to challenge it.

The EAT said that the tribunal had not dealt adequately with the issue in the light of Burton v De Vere Hotels Ltd (1997) ICR 1 and in the light of the requirement that the tribunal must conclude that the school 'subjected' the applicant to sex discrimination if such it had been.

The tribunal had not concluded that steps it had identified could have prevented the discrimination.

It was important, the EAT said, that before finding that a school or similar body had subjected an employee to discrimination not only must the steps that the school could have taken be identified, but there had to be a conclusion that the taking of those steps could have prevented or reduced discrimination.

The EAT considered that, as a matter of urgency, the Department for Education and Employment (DfEE) should issue new guidelines to schools.

Pensions adviceOutram v Academy Plastics Ltd, The Times, 26 April 2000Employers will be relieved by this decision of the Court of Appeal that an employer who is also the trustee of the employer's pension scheme did not owe an employee a duty of care in tort to give advice in respect of his membership of the scheme.

A judge was right to strike out a claim, brought by a pensioner's widow, on the basis of Scally v Southern Health & Social Services Board (1992) 1 AC 294 and cases involving the Pensions Ombudsman, including University of Nottingham v Eyett, The Times, 3 December 1998.

Age discriminationTaylor v Secretary of State for Scotland, The Times, 12 May 2000Dismissing an appeal against earlier decisions in this long-running saga, the House of Lords held that a prison officer had not been discriminated against on the ground of age in breach of his contract of employment.

Where the contract specified a retirement age of 55, but allowed employees to continue working after that age at the employer's discretion and subject to review, and also included a term that no employee would be discriminated against on the ground of age, neither the conditions as to retention beyond 55 nor a subsequent decision to dismiss all employees working beyond the age of 55 infringed the contractual obligation in respect of equal opportunities.

by Martin Edwards, Mace & Jones, Liverpool