FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no s . 4103/04 , 5498/04, 10617/04, 14557/0 4 , 27313/04 by LOVE and Others against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 13 December 2005 as a Chamber composed of:

Mr J. Casadevall , President , Sir Nicolas Bratza , Mr M. Pellonpää , Mr R. Maruste , Mr K. Traja , Ms L. Mijović , Mr J. Šikuta , judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application s (see attached appendix) ,

Having deliberated, decides as follows:

THE FACTS

The applicant s (see attached Appendix) are British nationals .

A. The circumstances of the case

The facts of the case, as submitted by the applicant s , may be summarised as follows.

1. Background facts

The applicants were, at the material time, serving members of the British armed forces. They claim that, following an investigation into their sexual orientation, they were each discharged from the armed forces pursuant to the policy against homosexuals in the armed forces on the dates listed in the attached Appendix.

2. Domestic proceedings

The applicants submitted a claim to the employment tribunal (“the ET”) arguing that their dismissal, and the circumstances leading to it, breached the Sex Discrimination Act 1975 (“the 1975 Act”). As a result of the House of Lords ' judgment MacDonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) ( S cotland ) dated 19 June 2003 , the ET struck out Mr Bullet ' s case (14557/05) and dismissed (by consent) the remaining applications on the dates listed in the attached Appendix.

B. Relevant domestic and European law and practice

1. The former policy of the Ministry of Defence

On 27 September 1999 the Ministry of Defence ended its policy of excluding homosexuals from the British armed forces following the delivery of judgments in Lustig-Prean and Beckett v. the United Kingdom (nos. 31417/96 and 32377/96, 27 September 1999 ) and Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96, ECHR 1999-VI).

2. The Equal Treatment Directive: the Perkins ' case

On 24 January 1996 Mr Perkins, who had also been dismissed from the Royal Navy in 1995 on grounds of his homosexuality, applied to the High Court for leave to take judicial review proceedings on the basis that the Ministry of Defence policy was “irrational”, that it was in breach of Articles 8 and 14 of the Convention and that it was contrary to the EU Council Directiv e 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (“the Equal Treatment Directive”).

On 30 April 1996 the European Court of Justice (“the ECJ”) decided that transsexuals were protected from discrimination arising from their gender reassignment under European Community law and, in particular, by the Equal Treatment Directive ( P. v. S. and Cornwall County Council [1996] I.R.L.R 347). On 3 July 1996 Mr Perkins was granted leave by the High Court. On 13 March 1997 the High Court referred to the ECJ pursuant to the then Article 177 of the Treaty of Rome the question of the applicability of the Equal Treatment Directive to differences of treatment based on sexual orientation (R. v. Secretary of State for Defence, ex parte Perkins , 13 March 1997).

On 17 February 1998 the ECJ found that the refusal of travel concessions to a worker living with a person of the same sex could not be regarded as discrimination based on sex prohibited by the EU Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (“the Equal Pay Directive”) ( Grant v. South West Trains Ltd [1998] I.C.R. 449). Consequently, on 2 March 1998 the ECJ enquired of the High Court in the Perkins case whether it wished to maintain the Article 177 reference. After a hearing between the parties, the High Court decided to withdraw the question from the ECJ (R. v. Secretary of State for Defence, ex parte Perkins , 13 July 1998). Leave to appeal was refused.

3. The Sex Discrimination Act 1975 (“the 1975 Act”)

This Act gave effect in domestic law to the Equal Treatment Directive. Section 1(1)(a) of the 1975 Act provides:

“A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man.”

Section 2(1) provides that section 1, and the provisions of Part II and III of the Act relating to sex discrimination against women, are to be read as applying equally to the treatment of men, with the requisite modifications.

Section 5(3) of the Act provides:

“A comparison of the cases of persons of different sex ... under section 1(1) ... must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

Section 6(2) provides that it is unlawful for a person to discriminate against a female employee by dismissing her or subjecting her to any other detriment. If sexual harassment occurs in an employment context, it is considered “detriment” within the meaning of Section 6(2) of the Act.

4. House of Lords judgment on the 1975 Act

On 19 June 2003 the House of Lords found in MacDonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) ( Scotland ) that the word “sex” in the 1975 Act meant “gender”. It also found that the correct comparison was between the homosexual male applicant and a homosexual woman. These two conclusions meant that the claim of sex discrimination and sexual harassment before it fell away: in both cases, the applicant would not have been treated any differently to a female homosexual.

COMPLAINTS

1. Two applicants (Bullett and McLean) complained under Article 3 of the Convention, one applicant (McLean) complained under Article 10 of the Convention and all applicant s complained under Article s 8 and 14 of the Convention ab out:

(a) the investigations into their sexual orientation; and

(b) their subsequent discharge from the armed forces pursuant to the absolute policy against homosexuals in those forces.

2. They also complained under Article 13 that they did not have an effective domestic remedy in this regard.

THE LAW

The applicants complain about investigations into their homosexuality and their consequent dismissal further to a Ministry of Defence policy, in place at the time, against homosexuals in the armed forces. They invoke the Articles outlined above.

Article 35 of the Convention reads as follows:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

The Court recalls its decisions of 5 September 2000 on the admissibility of the cases of Perkins and R. v. the United Kingdom ((dec). nos. 43208/98, 44875/98) and of Beck, Copp and Bazeley v. the United Kingdom ((dec). nos. 48535/99, 48536/99 and 48537/99), all concerning persons dismissed from the armed forces on grounds of their homosexuality.

The Court has referred above to the withdrawal by the High Court of its (then) Article 177 reference to the ECJ in the Perkin s case following the ECJ ruling in the Grant case. R ( application no. 44875/98) had also issued proceedings in the Industrial Tribunal alleging sex discrimination contrary to the provisions of the 1975 Act and the Equal Treatment Directive. On 26 March 1998 the Industrial Tribunal found, inter alia , that given the decision in the Grant case, R ' s case did not appear strong. Following the High Court ' s judgment in Perkins , R withdrew her appeal to the Employment Appeal Tribunal. The Court found that the six-month time-limit began to run in both cases on the date of the High Court judgment in the Perkins case : both cases were introduced to this Court within six months thereof and thus were found to comply with the time-limit set down by Article 35 § 1 of the Convention.

In the subsequent cases of Beck, Copp and Bazeley v. the United Kingdom , the applicants issued proceedings in the Industrial Tribunal in 1995 claiming unfair dismissal and sex discrimination (based on the Equal Treatment Directive). Their domestic proceedings were stayed pending the outcome of the domestic proceedings in Perkins and, following the Perkins High Court judgment, Messrs Beck, Copp and Bazeley withdrew their applications before the Industrial Tribunal and introduced their cases to this Court again within six months of the High Court judgment in Perkins . The Court considered that those three applicants had complied with the six-month time-limit: it had been reasonable to pursue their domestic proceedings until the Perkins ' case resolved the Equal Treatment Directive issue.

Subsequently, Mr MacDonald (also referred to above) issued proceedings in the ET raising the Equal Treatment Directive but also claiming sex discrimination and sexual harassment under the 1975 Act. The domestic proceedings in his case addressed the interpretative issues to which the 1975 Act gave rise, a matter unresolved even after the R case . Detailed argument was heard before the ET and the appeal courts: each instance delivered detailed judgments on the question of whether discrimination on grounds of sex prohibited by the 1975 Act included discrimination on grounds of sexual orientation. While the case was eventually decided against Mr MacDonald , the Employment Appeal Tribunal and a judge of the Court of Session found in his favour. The case went as far as the House of Lords, each judge delivering a separate judgment.

The Court considers that, even assuming that in the light of the decisions in Perkins and R. and Beck , Copp and Bazeley it was reasonable for the present applicants to pursue their proceedings until the House of Lords ' judgment in MacDonald resolved the “1975 Act issue”, the six-month time-limit would run at the latest from the date of that judgment (19 June 2003). The Court does not accept that that time-limit could run from any later date (for example, the date on which their ET proceedings were struck out or dismissed). However, the earliest of the present applications was introduced in January 2004.

Even assuming therefore that the final domestic decision for current purposes was that of the House of Lords of 19 June 2003, the present applications must be considered to have been introduced outside the time-limit set down by Article 35 § 1 of the Convention and to be, as such, inadmissible.

For these reasons, the Court unanimously

Declares the application s inadmissible.

M ichael O ' B oyle J osep Casadevall Registrar President

APPENDIX [1]

No.

Application

Name

Date of Introduction

Date of Discharge

Date issued ET proceedings

Date of dismissal of ET proceedings

1

4103/04

Love

16/01/2004

30/03/1998

12/06/1998

07/01/2004

2

5498/04

Gundry

16/01/2004

06/05/1983

08/11/1997

07/01/2004

3

10617/04

Davies

01/03/2004

03/12/1991

17/10/1997

07/01/2004

4

14557/04

Bullett

19/04/2004

17/11/1995

23/08/1997

24/10/2003

5

27313/04

McLean

14/07/2004

10/12/1994

17/02/1997

21/01/2004

[1] The House of Lords’ judgment in MacDonald is dated 19 June 2003 .