Gender case is just the ticket

A lesbian railway worker who took legal action after her partner was denied a free travel pass may end up changing outdated laws.
British equality law is in the dock again, this time for allegedly failing to protect the employment rights of a lesbian worker who claims she was treated less favourably than a heterosexual man. Because our anti- discrimination legislation does not cover homosexuals - and European law does not require that it should - employers are free to treat gay and lesbian workers differently from their heterosexual colleagues. A test case has now been brought to challenge that omission.

Lisa Grant, a telephone-inquiry supervisor for South West Trains, told an industrial tribunal that her employer discriminated against her by failing to provide her lesbian partner with a free travel pass. The claim is being brought under the Equal Pay Act and the European Treatment Directive, using the argument that a woman should not be treated differently from a man just because of her sex.

Ms Grant is alleging that it was discriminatory to provide her immediate boss with a pass for his unmarried female partner while denying a similar concession to Jill Percey, her partner for many years. Under the terms of the employer's regulations, the travel concession may be given to a long-term partner of any employee "who has been in a meaningful relationship for two years or more with the common-law spouse". Ms Grant's complaint is that the regulations stipulate that the partner must be of the opposite sex and that this contravenes the Equal Pay Act, thus requiring the employer to justify the difference.

South West Trains has defended its actions by pointing out that there is no law which prohibits discrimination against homosexuals. In support of this claim, it cites a recent decision of the Employment Appeal Tribunal that harassment of a homosexual was not contrary to the Sex Discrimination Act as well as the decision of the Court of Appeal that gays and lesbians in the armed forces can be dismissed because of their sexual orientation.

The company accepts that under the Equal Pay Act, Lisa Grant has the right to the same terms and conditions as a man - a right which, it states, has not been infringed in this case. Its solicitor, Andrew Gilbert, of Kennedys, points out that under the terms of her contract, Ms Grant enjoys the same benefits as her boss. The fact that she cannot take advantage of one of them because of her sexual orientation is not prohibited by the Act, and the employer cannot be found to have discriminated against her. Likewise, he says that because European law is silent on the issue, it cannot be used in support of her claim.

But two days before the case was due to be heard at Southampton Industrial Tribunal, in early May, the European Court of Justice gave judgment in the case of a transsexual who claimed she had been unfairly dismissed after a sex change.

Lisa Grant's solicitor says the importance of the judgment lies in its broad interpretation of the directive. Of particular significance to this case is the finding that the directive applies to discrimination against transsexuals because "such discrimination is based, essentially if not exclusively, on the sex of the person concerned".

Ruth Harvey of solicitors Barnett Alexander Chart says that this argument lies at the heart of her client's application. The only reason, she says, that the company can discriminate against Lisa Grant as a lesbian is directly linked to the fact that she is a woman.

"What the English courts have tended to do is try to distinguish between the issue of gender and sexual orientation. They have agreed with the Equality of Misery argument - in other words, that there can be no discrimination as long as the employer is treating a lesbian and a gay man equally badly. The European Court of Justice has now said that this approach is nonsense and that decision is binding on the industrial tribunal."

Andrew Gilbert's line is that "the case simply says that dismissing an employee for undergoing a sex change is in breach of the Equal Treatment Directive. It has nothing in common with Lisa Grant's application because the issue at stake was sexual identity as opposed to sexual preference."

Whatever the merits of the relative claims, it seems likely that there will be a referral to the European Court to decide whether both the Equal Pay Act and/or the directive should prohibit discrimination against homosexuals. If the case hits the jackpot, gay and lesbian employees will be able to take advantage of UK and European equality legislation.

Stonewall, the body that campaigns for gay and lesbian equality, is supporting Ms Grant's case on the basis that "she should be paid the same as other people who do the same job". The organisation is also the sponsor of the Sexual Orientation Discrimination Bill, which seeks to extend the provisions of the Sex Discrimination Act to homosexuals, but which has little hope of success because of lack of government support. Nevertheless, Stonewall believes that it is only a matter of time before a decision of the European Court finds in its favour and forces a change in UK legislation. If that happens, South West Trains will have paid a high price for its reluctance to amend its regulations and provide Lisa Grant's partner with a free travel pass.

The author is legal officer with the Manufacturing, Science and Finance Union.