HM Land Registry v Grant – Employment Appeal Tribunal (EAT)
In considering whether a gay person has been subjected to unlawful discrimination, a Tribunal must take into account whether he or she had deliberately and voluntarily "come out" as gay.
The Case
G was a gay man who had started working for the Land Registry (L) in its Lytham office. After having worked there for a while he came out to his colleagues. Several years after this he was promoted, and the promotion involved a move to the Land Registry's Coventry office. An employee who worked at the Lytham office told an employee at the Coventry office that G was gay. Amongst other matters, during a work meal, G's line manager (K) asked G about his partner using the words: "How is your partner Chris, how is he?". There were other examples of K referring to G's sexuality in the presence of colleagues, including one where K allegedly made a "limp wrist" gesture towards G.
G brought proceedings in the Employment Tribunal under the Employment Equality (Sexual Orientation) Regulations 2003 (the "Regulations"). His claim contained 24 separate allegations of discrimination and harassment.
The Tribunal concluded that a number of the incidents complained of resulted in detriment to G, and upheld his claim under the Regulations. They found that L had discriminated against and unlawfully harassed the G on grounds of sexual orientation.
The Decision
L appealed on the basis that the Tribunal had failed to evaluate the evidence that G was open about his sexuality, and that his sexuality was widely known in the Lytham office. L argued that since G had been content for his sexual orientation to be known in that environment, he could not have suffered any detriment as a consequence of K's comments.
The EAT allowed the appeal. The fact that G had chosen to reveal his sexuality at Lytham and that it was known to his manager was a central issue. It was not clear from the decision what weight the Tribunal had attached to this matter when deciding the case. Further, there had been no clear finding that K had intended to undermine G which, whilst not determinative in a case such as this, is nonetheless an important issue.
What Does It Mean For You?
Cases of this type serve as useful reminders to employers that having in place effective anti-bullying and harassment procedures, that are widely broadcast and well-known to staff, can serve as useful tools when dealing with disputes, and may assist in preventing litigation from arising.
We advise clients on how to effectively manage grievances and grievance investigations, covering all forms of discrimination and allegations of bullying and harassment, and how to prepare robust in-house policies and procedures. If detailed advice is required, please feel free to get in touch.
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