Lisboa v Realpubs
The law against treating workers less favourably on the ground of their sexual orientation is well established. In Lisboa v Realpubs, the Employment Appeal Tribunal (EAT) said that a gay employee who resigned as a result of a strategy to encourage “straight” customers which led to gay clients being treated less favourably, was also protected.
Basic facts
Mr Lisboa, an openly gay Brazilian man, applied for a job as assistant manager at a pub that had been recently takenover by Realpubs. During the interview, the new owners made clear that they wanted to transform the bar from a gay pub into a gastropub.
Shortly after he started work in December 2008, he was asked by the manager to display a board outside the bar saying “this is not a gay pub”. Mr Lisboa objected and suggested a different form of words which was agreed.
The owners also initiated a new policy to seat non-gay customers in prominent places so they could be seen from outside the pub, and to have a more even balance of staff between the sexes as a result of which seven male staff members left or were sacked.
Mr Lisboa heard a director make a derogatory comment about his sexuality, refer to some gay customers as “queens” and comment that his fellow assistant manager “walked too camp”.
After a few weeks in the job, he resigned claiming constructive wrongful dismissal. He cited two instances of direct discrimination - comments made about his sexual orientation; and the policy of making the pub less welcoming to gay customers which he had to cooperate with.
Tribunal decision
The tribunal agreed that the comments made to Mr Lisboa were offensive and that he had suffered a detriment on the ground of his sexual orientation, but did not agree that the company had followed a policy of making the pub unwelcoming to gay customers.
However, his claim of constructive dismissal failed because although he had been subjected to a detriment, he had resigned as a result of a “mistaken perception that Realpubs was a homophobic organisation”, and not because of the offensive treatment.
EAT decision
Relying on the case of Wethersfield and Sargent, the EAT concluded that, although this case was far more “nuanced” than Sargent, the tribunal had failed to ask itself the crucial question.
That is, whether Realpubs “in advancing a legitimate policy of widening the appeal of the pub following its re-launch, implemented it in such a way that the old gay clientele was less favourably treated than the desired straight/family customer base on grounds of their sexual orientation.”
Given the tribunal’s findings of fact , the EAT concluded that gay customers were “plainly and unarguably” treated less favourably on the ground of their sexual orientation.
Mr Lisboa’s reason for resigning was prompted by unlawful discrimination against customers and his claim of constructive dismissal therefore succeeded.