Employment lawBy Martin Edwards, Mace & Jones, LiverpoolSexual orientationMacDonald v Ministry of Defence (2000) IRLR 748This decision of the Employment Appeal Tribunal (EAT) sitting in Edinburgh has attracted a good deal of attention because of its ground-breaking approach to discrimination on the basis of sexual orientation.

An employee was subjected to vetting procedures during which he declared that he was homosexual.

This admission led to his dismissal.

He argued that his dismissal amounted to unlawful discrimination on the ground of sex and that the questioning to which he was subjected during the vetting process about his sexual activities amounted to sexual harassment.

An employment tribunal dismissed his complaints, but the EAT allowed his appeal.

The word 'sex' in the Sex Discrimination Act 1975 is, according to the EAT, ambiguous and should be interpreted to include 'on grounds of sexual orientation' as well as meaning 'gender'.

Although the word 'sex' has been clearly interpreted by the English courts as being restricted to a gender interpretation, the opposite interpretation - according to the EAT - has been put upon the word by the European Court of Human Rights both directly and indirectly.

As a result, there is a classic example of a statutory ambiguity.

If domestic legislation is ambiguous in the context of a potential convention right, the interpretation consistent with the convention should be favoured.On that basis, the EAT favoured the wider interpretation.

Grant v South-West Trains Ltd (1998) IRLR 206, did not greatly influence that conclusion since the European Court was considering the issue of equal pay and was not directly concerned with defining the word 'sex'.

The appropriate comparison for the purpose of the Sex Discrimination Act was between a male or female homosexual and a male or female heterosexual, so as to determine whether a homosexual of either gender was being treated less favourably than a heterosexual of the opposite gender.So far as the claim of sexual harassment was concerned, the appropriate test was that laid down in Porcelli v Strathclyde Regional Council (1986) IRLR 134, which confirmed that if the nature of the conduct is both sexually-related and blatantly unacceptable, there is no need for a comparator.

On the facts as found, the conduct of the vetting interview amounted to unlawful harassment.

A number of commentators, including the editor of the IRLR, have already questioned the EAT's reasoning.

Specifically, the EAT's interpretation of the past approach of the European Court of Human Rights appears to be dubious.Maternity payAlabaster v Woolwich plc and Secretary of State for Social Security (2000) IRLR 754The EAT has held that reg 21(7) Statutory Maternity Pay (General) Regulations, which was enacted following the European Court's decision in Gillespie v Northern Health & Social Services Board (1996) IRLR 214, fails fully to implement that ruling in two respects.

First, it provides for an increase in the calculation of normal weekly earnings only where a pay increase is backdated, whereas the decision drew no distinction between backdated and immediate pay increases.

Second, the European Court did not tie in the pay increase to the 'relevant period' for calculating statutory maternity pay as defined in reg 21(3).

Gillespie covered any pay rise from the day on which it took effect, between the beginning of the 'relevant period' until the end of the maternity leave.

However, on the facts of the case the employee was out of time to bring a claim in respect of unauthorised deductions from wages.

This was not a case that could be brought under the Equal Pay Act 1970 or Article 141 of the EC treaty.