The Court of Appeal has handed down the decision of Grant v Land Registry ([2011] EWCA Civ 769), where the Equality and Human Rights Commission was given permission to be an intervener.
Facts
Mr Grant started working for the Land Registry in April 2003 at Lytham. He did not initially reveal that he was gay, but later he chose to make this public to his colleagues at Lytham; where there were over three hundred employees.
In October 2006 Mr Grant was promoted to a post at the Coventry Land Registry. He did not tell his colleagues at that office that he was gay. He wished to reveal this fact in his own time, when he felt comfortable about doing so. He alleged that whilst at Coventry he was subject to various acts of sexual orientation discrimination and harassment from his line manager, Sharron Kay.
Background
At first instance the Employment Tribunal found that six allegations of direct sexual orientation discrimination were proved, five of which also amounted to harassment. These were:
- (1) That Sharron Kay, the claimant’s line manager, told Irene Crothers, another colleague, that the claimant was gay. This was before the claimant commenced work at Coventry. Ms Kay had wanted to convey this information and the claimant was distressed when he heard that she had done so.
- (2) That Sharron Kay asked the claimant “How is your partner, Chris? How is he?” at a dinner with colleagues in October 2006. Again the claimant was uncomfortable that this unwanted and pointed remark had been made.
- (3) That Sharron Kay placed improper pressure upon the claimant to reveal the fact that he wanted to attend a lesbian/gay meeting (LGBT) when it was intended to be confidential. She strongly suspected what the meeting was about. He did not in the event attend the meeting because of her apparent hostility.
- (4) That in March 2007 Sharron Kay made a limp wrist gesture to the claimant.
- (5) That Sharron Kay was unco-operative with the claimant regarding the use of fleet cars whereas she had been co-operative with a heterosexual male colleague.
- (6) That Sharron Kay, by an email on 2 October 2007, questioned whether the claimant was really ill after he had been absent with an illness for some time. The Tribunal found that the tone of the email was influenced by the fact that the claimant was gay.
In each of these cases the Tribunal found that Mr Grant was treated less favourably by reason of the fact that he was gay. Each of these matters, except the fifth concerning the use of the fleet cars, was also found to be an act of harassment contrary to regulation 5.
Six other allegations of direct discrimination, and seven of harassment, were dismissed.
HM Land Registry appealed to the Employment Appeal Tribunal (EAT), essentially on the grounds that the Employment Tribunal failed to have regard to certain facts which ought to have been central to their legal analysis. It was alleged that the failure to have regard to them rendered their conclusions flawed. The facts relied upon were that the claimant had come out in Lytham and that Sharron Kay knew of this.
The EAT upheld the appeal and remitted the case to a fresh tribunal to consider the six allegations of discrimination, and the five of harassment. Mr Grant then appeals against that decision and seeks to restore the findings of the Employment Tribunal.
The concept of direct discrimination is found in regulation 3 the Employment Equality (Sexual Orientation) Regulations 2003:
“(1) For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if –
(a) On grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons …
(2) A comparison of B’s case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”
“Outing” of colleagues
The Court of Appeal found that as his manager had no ill purpose, then there could be no direct discrimination or harassment.
Lord Justice Elias emphasised that even if Mr Grant was upset by the disclosure, the effect did not amount to harassment, and tribunals ought not to allow trivial acts to be caught by the concept.
Lord Justice Elias referred to the powerful submissions from the Equality and Human Right Commission (EHRC) as to us why it is important that gay persons should be able to reveal their sexual orientation on a confidential basis, and that to break that confidence would be likely to involve a breach of Article 8 and might, depending on the circumstances, also involve sexual orientation discrimination.
Counsel for the EHRC referred the Court of Appeal in particular to the ACAS guide on sexual orientation in the workplace which states in terms that “outing” someone might have those consequences.
Lord Justice Elias held that “Nothing in this judgment is intended to minimise those concerns or cast doubt on the accuracy of those statements. The circumstances here, however, where someone has chosen widely to reveal his sexual orientation, puts the case into a different category“.
Philip Henson, Partner, and Head of Employment Law, Bargate Murray solicitors
