Just before the Court of Appeal hearing, the Grant v South West Trains case was dismissed by the ECJ so the Court of Appeal, using that clear judgement, referred the Smith case back to an Employment Tribunal to be heard on its merits. On the day of the Tribunal hearing, neither Smith nor his representatives appeared and the case was dismissed. Judgment 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. See also UK employment discrimination law UK labour law Human Rights Act 1998 Notes United Kingdom labour case law United Kingdom equality case law United Kingdom LGBT rights case law 1998 in case law 1998 in LGBT history 1998 in British law Court of Appeal (England and Wales) cases Gender equality case law Harassment case law