Gay Rights and the Human Rights Act 1998 - A step too far?

Written by Dr Peter Jepson for Croner Publications.

Over the next few months, employment practitioners will be keen to see the developing implications of the Human Rights Act 1998. Will the Courts interpret legislation in a way that heralds new rights for employees, or will any changes be minimal?

The Employment Appeal Tribunal, in the case of MacDonald v Ministry of Defence(endnote1), have certainly showed the potential for a radical approach to interpreting the rights of employees. They have departed from previous authorities, which hold that discrimination against homosexuals does not fall within the Sex Discrimination Act 1975, and concluded that the word 'sex', in the SDA, should be interpreted to include 'on grounds of sexual orientation'.

In reaching this conclusion, the EAT overturned what appeared to be settled law. This article considers the basis of this decision and, while welcoming the outcome, argues that the appeal court have failed to follow the basic principles of judicial precedent and are in danger of undermining the basis of consistency which is essential to the judicial process.

In the MacDonald case, Honourable Lord Johnston and his panel members recognised the settled case law of the English Courts, and of the European Court, which consists of cases such as R v Secretary of State for Defence ex parte Perkins and Grant v South West Trains(e2) all of which determined that the relevant discrimination as to sex in relation to EEC legislation was that between male and female, i.e. an issue of gender. Accordingly, the EAT could be considered as being effectively bound by the precedent of these senior decisions.

Despite such a settled position, the EAT ignored binding precedent and took into account the European Court of Human Rights cases which established that investigations into homosexual orientation can amount to a violation of Article 8, i.e. the applicants right to privacy(e3). However, even more critical to this finding was the unreported ECHR case of Salgueiro da Silva Mouta v Portugal(e4), which established that sexual orientation is contrary to its own discriminatory provisions, namely Article 14 of the Convention which uses the word "sex" in relation to discriminatory acts that can be successfully complained against.

As a consequence of these cases, the EAT was faced with an interpretive dilemma. Should they follow the law of the English Courts (and ECJ) which has clearly established that the word "sex" is restricted to gender interpretation and not a sexual orientation interpretation, or should they take the opposite viewpoint and follow the interpretation of the European Court of Human Rights which now takes a wide approach including sexual orientation within the terms of the word "sex"?

The EAT, in reaching its conclusion, took into account arguments presented in a number of cases, such as R v Home Secretary, ex parte Brind(e5), where it was stated that where ambiguity exists in the interpretation of statute it should be assumed that Parliament intended to legislate in conformity with the Convention. Accordingly, the tribunal decided that it was appropriate to follow the approach of the European Court of Human Rights (notwithstanding the fact that Article 14 of the Convention does NOT directly prohibit discrimination by public bodies – it simply prohibits them from discrimination when complying with other Convention requirements).

While there may be some logic to this, it is the writer’s submission that such an approach is flawed since it provided the potential for undermining the very concept of judicial precedent. Indeed, as the below flow chart signifies, it is the duty of a Court to follow binding precedent at the expense of persuasive precedent. We can see from the flow chart that the EAT is required to follow the binding precedent of all senior domestic courts, and the European Court of Justice, when it makes its judgement. It is abundantly clear from section 2(1a) of the Human Rights Act 1998 that courts are only required to "take into account" any judgement or decision of the European Court of Human Rights in the interpretation of Convention Rights. In effect, this means that European Court of Human Rights decisions should only be regarded as persuasive precedent and, as such, they should not override any binding precedent.


Binding precedent and UK Employment Law cases

Binding authority =

Persuasive authority = ECHR


European Court of Justice ECHR

House of Lords (UK Supreme Court) ECHR

Court of Appeal ECHR

Employment Appeal Tribunal ECHR

Employment Tribunal ECHR


Certainly, section 3(1) of the Human Rights Act 1998 does slightly muddy the waters, in that it requires Courts in interpreting legislation to, so far as it is possible to do so with regards to primary and secondary legislation, read and give effect in a way which is compatible with Convention Rights. However, it is submitted this latter approach can and should only apply where those Convention Rights are clear and irrefutably rooted in the Treaty itself(e6)

For junior appellant courts, in interpreting legislation, to regularly ignore section 2(1a) of the HRA 1998(e7) and apply section 3(1)(e8) would make section 2(1a) almost redundant. This surely cannot have been the intention of Parliament.

Obviously these are early days in the application of the Human Rights Act, but it is important that this conflict is resolved as soon as possible. Lawyers need some clear guidance from the senior appellant courts. Are the Courts required to ‘take into account’ decisions of the European Court of Human Rights, or do such decisions bind them?

Until we are given some clear guidance on this matter the whole process of judicial precedent is left in a state of chaos. While I may welcome the outcome of the case of MacDonald v Ministry of Defence, I hope that if any appeal is made the senior appellant courts will clarify the basis upon which lesser courts can reach decisions concerning the ECHR.

Dr Peter Jepson.

5th October 2000.


[1] Appeal No: EAT/121/00, at the Tribunal on 19th Sept 2000.

[2] The full list of cases are R v Ministry of Defence ex p Smith v Grady [1996] IRLR 100, R v Secretary of State for Defence ex p Perkins [1997] IRLR 297 and Perkins No 2 [1998] IRLR 508, Smith v Gardner Merchant Ltd [1998] IRLR 510 and Grant v South-West Trains Ltd [1998] IRLR 206.

[3] Smith & Grady v UK [1999] IRLR 734 and Lustig-Prean and Beckett - Application Numbers 31417 and 32377/96.

[4] Dated 29th December 1999.

[5] [1991] 1 AC 747.

[6] The ECHR prohibition of discrimination by public bodies is tenuous. Article 14 does NOT prohibit discrimination by a public body – it simply prohibits them from discriminating when complying with other Convention requirements. 

[7] Which requires Courts, in interpreting Convention Rights, to ‘take into account’ the case law of the European Court of Human Rights.

[8] Which requires Courts to read and give effect to legislation so as, so far is possible, to comply with Convention Rights.