Lustig-Prean and Beckett v the United Kingdom
September 27 1999
The European Court of Human Rights in their decision of Lustig-Prean and Beckett v UK suggest that the arrival of the Human Rights Act 1998 may well have some significant impact on British employment law, at least in relation to the vexed issue of discrimination against gays and lesbians in the work place.
Mr Lustig-Prean and Mr Beckett both had enjoyed glittering careers in the Royal Navy, when they were investigated by the service police regarding possible homosexual tendencies. Both were asked for explicit details of their homosexual relations and activities, and both openly admitted their homosexuality in response to the questioning. Despite their exemplary records, both were discharged from the Navy.
In judicial review proceedings involving similar circumstances (R v Ministry of Defence ex parte Smith 1995), the Government had previously maintained that such discharges were necessary to maintain morale and unit effectiveness.
In the review proceedings, the Government's defence was accepted by the Court, and the applications were dismissed on the grounds that the policy of discharge did not breach the stringent test for judicial review requiring a decision that "outrageously defies logic or accepted moral standards".
The more recent equal pay case of Grant v South West Trains Ltd (1998) was referred to the European Court of Justice for determination as to whether the Equal Pay Directive extended to outlaw discrimination on the grounds of homosexuality.
Following the unfavourable decision in favour of South West Trains and against Ms Grant, Mr Lustig-Prean and Mr Beckett withdrew the similar Tribunal claims that they had lodged, under the Sex Discrimination Act 1975.
There remained, however, their applications to the European Court of Human Rights in Strasbourg, which proceeded on the basis that the manner of the investigations by the Navy into their homosexuality and their subsequent discharges breached Article 8 (and the catch-all Article 14) of the European Convention of Human Rights. Article 8 provides that "Everyone has the right to respect for his private life. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security "for the prevention of disorder".
As the law now stands, the United Kingdom has ratified the Convention and is meant to abide by its decisions but the Convention has not actually been written into British law which means, that in pursuing rights under it, claimants have to apply directly to the Strasbourg Court.
In Mr Lustig-Prean's and Mr Beckett's cases, the Court decided that the investigations by the service police, including detailed interviews regarding their homosexual practices and their consequent discharge, constituted an interference with their right to respect for their private lives.
The Government's arguments - that homosexuality had an adverse impact on unit cohesion and morale and operational effectiveness - were insufficient and unsubstantiated. Such views were founded solely on the negative attitudes of heterosexual personnel, and as such could not amount to adequate justification.
After the long run of unsuccessful decisions precluding gays and lesbians from taking advantage of the Sex Discrimination legislation, this decision represents a tremendous victory for justice and common sense. The question that still remains to be addressed, however, is what impact the decision will have on domestic employment law, particularly in relation to discrimination on the grounds of sexual orientation.
With effect from October 2 2000, the main provisions of the Human Rights Act 1998 will come into force in Britain, making the Convention directly enforceable in the domestic Courts. In effect, Mr Lustig-Prean and Mr Beckett would have been able to pursue their cases in this country without the considerable expense and inconvenience of going to Strasbourg where the average cost of each case is £30,000.
The rights under the Act are enforceable against the state and public authorities and not against private individuals or private organisations. In previous Strasbourg case law, it has been suggested that even public bodies exercising private rights, such as in relation to employment matters, may not be covered. Bodies with both private and public responsibilities are covered only in respect of their public functions, not their relations with their employees.
In the case of Mr Lustig-Prean, this public and private divide was not referred to. Clearly, the policy of automatic discharge for all gay service personnel was very much a matter of Government policy as opposed to a particular act just involving an employer and employee.
Nonetheless, it simply seems to have been assumed that the Convention should apply in these circumstances, even though the case in one sense did simply relate to what were essentially private rights between Mr Lustig-Prean and his employer. It is very likely that the decision will be regarded as having broader public sector application.
Further, if cases under the Human Rights Act are successful against public organisations, then the incongruity in having inconsistency in key employment principles between public and private employment will create an unanswerable case for change. So, for example , in the Equal Pay context, the rights of employees in the public sector and not the private sector to recover compensation in indirect sex discrimination cases, did eventually lead to an amendment to bring the two broadly in line.
Section 2 and 3 of the Act also impose an express obligation all Courts and Tribunals to interpret all legislation so as to be compatible with the Act. This will mean that Tribunals will not necessarily be bound by previous decisions made before the coming into force of the Act. Where the Act has relevance, then previous principles may be revisited. In the context of discrimination on the grounds of sexual orientation, the combined effect of the Lustig-Prean decision, and section 2 of the Act may well lead to Tribunals holding that discrimination by public authorities against gays and lesbians is, at the very least, unfair, arguably also a breach of contract.
We also have the Government's White Paper on the Human Rights Bill, where it is clearly stated that the Government will ensure that its internal laws are rectified so as to bring them in line with Convention decisions (restating what was in theory anyway always the case).
All these factors, combined with the fact that the reasoning and circumstances of the Grant case are generally regarded as inconclusive, and the unequivocal way in which the Court of Human Rights find in favour of Mr Lustig-Prean, mean that it can realistically be only a question of time before discrimination at work on the grounds of sexual orientation in itself is finally and conclusively declared to be unlawful in domestic Courts and Tribunals. It will not be before time.