Lisa Grant, a clerical officer in the BR travel bureau at Southampton, is challenging British Rail's refusal to allow her lesbian partner, Jill Percey, the same concessionary fares of 10 cut price journeys annually normally granted to common law partners.
About 70 other BR employees around the country are expected to be affected by the outcome of the case which has been supported by the Stonewall group which campaigns for gay and lesbian rights.
The industrial tribunal at Southampton was told BR - which was later privatised as South West Trains - refused to grant Ms Grant the travel perk even though other unmarried employees were given the privilege. BR's longstanding policy has been to grant travel privileges to unmarried couples only if "in terms of the law" they could eventually become married.
Cherie Booth QC, claimed Ms Grant, of Eastleigh, Hampshire, had been discriminated against because she did not receive equal pay: "The pass concession privileges in respect of long term partners, defined as a stable relationship over two years, is a benefit of considerable worth to the applicant."
Ms Booth had read to the court South West Train's equal opportunities policy which claimed that no employees would be discriminated against on the grounds of sexuality, marital status, membership of a trade union or any other unjust reason. However, she claimed that another employee at Southampton, a Mr Potter who lives with his common-law wife, had been given a travel pass.
She said the equal opportunities policy "were fine words which did not come up to scratch in practice".
In response, Nicholas Underhill for South West Trains said: "Neither English law nor European law prohibits discrimination against homosexuals as such. Discrimination on sexual orientation is not included in sex discrimination legislation."
He pointed out that Lord Justice Brown, who rejected a claim of unfair dismissal by a group of homosexuals who were thrown out of the army, said he was obliged to reject their application although he had sympathy with their case. Mr Underhill said: "In the view of the English courts, European law does not prohibit discrimination on the grounds of sexual orientation.
"The distinction I am drawing is between sexual preference and sexual identity. European law legislates only for equal pay for equal work between men and women and not between heterosexuals and homosexuals."
Asked by tribunal chairman, Ian Edwards, how this sat with South West Trains' equal opportunities policy, Mr Underhill said: "In some circumstances there is a genuine difficulty about whether a policy like this applies and how it applies. Does such a policy mean we have to pay widows' pensions to partners of homosexual employees?
"You can apply the policy in 90 per cent of instances but sometimes there are difficulties that need to be looked at individually," he added.
The tribunal reserved its decision and is expected to issue it in about six weeks' time.
After the hearing, Ms Percey said the women had expected to have to await judgment on their case.
But she added: "I am confident sooner or later we will win because it is blatantly so unjust."
Angela Mason, executive director of Stonewall, praised the work of Ms Booth in the case.Reuse content