Puneet Varma (Editor)

Smith v Gardner Merchant

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Decided  14 July 1998
End date  July 14, 1998
Smith v Gardner Merchant

Citation(s)  [1998] IRLR 510, [1999] ICR 134, [1998] 3 All ER 852, [1998] EWCA Civ 1207
Judge(s) sitting  Beldam LJ, Ward LJ and Sir Christopher Slade
Ruling court  Court of Appeal of England and Wales

Smith v Gardner Merchant [1998] IRLR 510 is a UK labour law case, concerning the possibility of claiming compensation for discrimination under the gender statutes. It took place before the Employment Equality (Sexual Orientation) Regulations 2003 were introduced.



Paul Smith worked as a barman for the Coliseum and then the Globe Theatre. At the latter, a homophobic colleague called Barbara Touhy harassed him, saying he had diseases and should be put on an island. She hit him in the back one night. He complained, and the employer took her version that he was being aggressive toward her. He was dismissed for gross misconduct. He alleged discrimination under the Sex Discrimination Act 1975, saying that a comparator ought to be a homosexual woman, and that he was therefore less favourably treated on grounds of his sex. Both the tribunal and the EAT found against him, because they held it was sexuality discrimination, not gender discrimination that he suffered.


Ward LJ held that the tribunals had failed to ask themselves whether a homosexual woman would not have been less favourably treated. That was the correct question, which they would have to try to do again. The suggestion was, that Barbara would not have been malicious and violent towards a gay woman, and therefore there probably was discrimination.


Smith v Gardner Merchant Wikipedia