CEDH · CASELAW;CLIN;ENG — 6 février 2007

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 94 February 2007 MacDonald v. the United Kingdom (dec.) - 301/04 Decision 6.2.2007 [Section IV] Article 37 Article 37-1-c Continued examination not justified Applicant’s rejection of Government’s offer to pay compensation for compulsory resignation from the military on grounds of homosexuality: struck out   The applicant joined the Royal Air Force and he applied for a compassionate posting as his mother was ill. The security level of that posting required him to obtain Developed Vetting (“DV”) security clearance. The applicant was aware that he would be asked about his homosexuality in the course of the vetting procedure. He was interviewed by an officer and when asked if he was homosexual, he confirmed that he was. The recommendation of that officer was that, with the exception of the applicant’s homosexuality, he was suitable for DV clearance. It was decided that security clearance could not be granted, and also that it was essential to re-interview the applicant, in particular, to establish the depth of his homosexual activities, with whom he had been involved and whether any other servicemen had been involved with him. Following the new interview, it was recommended that DV security clearance and also the basic level of clearance required of all RAF personnel should be denied to the applicant. The applicant’s commanding officer was informed that DV clearance was unlikely to be granted. The applicant was called upon to resign his commission on grounds of his homosexuality. He replied that, having taken legal advice, he would not voluntarily resign his commission. A letter then confirmed that his compulsory resignation would take effect. The applicant submitted a claim to the employment tribunal (“ET”) claiming that his dismissal constituted unlawful discrimination on grounds of sex and, in addition, that the circumstances leading to his dismissal (in particular the holding of the second interview) constituted sexual harassment. The ET found against the applicant. It considered that the relevant Act applied to discrimination on grounds of gender and not on grounds of sexual orientation. It also found that there was no discrimination on grounds of “gender”. The employment appeal tribunal (EAT) delivered a detailed judgment allowing the appeal and disagreeing with the ET on all main points. The EAT considered the word “sex” in the relevant act to be ambiguous so that it should be interpreted as including “sexual orientation”. The majority of the Inner House of the Court of Session allowed the appeal and restored the decision of the ET. Counsel for the Secretary of State for Defence expressly accepted that the applicant’s rights under Article   8, alone and in conjunction with Article   14 of the Convention had been violated. The judges were unanimous in finding that the relevant act was concerned with gender and not with sexual orientation. The applicant appealed to the House of Lords. His appeal was rejected. The judges were unanimous in finding that the word “sex” in the relevant act meant “gender” and held that the claim of sexual discrimination and harassment fell away. Struck out : The Government proposed to make a unilateral declaration with a view to resolving the issues raised. It further requested the Court to strike out the application in accordance with Article   37. The Government acknowledged that the investigation and discharge breached the applicant’s rights under Article   8 (alone and in conjunction with Article   14) and of Article   13 in conjunction with Article   8. The Government declared that they were offering to pay ex gratia to the applicant the amount of £115,000. The applicant requested the Court to reject the Government’s initiative on the basis that the unilateral declaration was insufficient both in terms of the statement on the merits of his case and the level of compensation proposed. Having regard to the nature of the admissions contained in the declaration as well as the amount of compensation proposed, the Court considered that it was no longer justified to continue the examination of the application. The Court was satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes