Labour & European Law Review Weekly Issue 234 08 September 2011
It is against the law to discriminate against someone because of their sexual orientation. But in Grant v HM Land Registry, the Court of Appeal has said that it is not discriminatory to mention in idle conversation that someone is gay if their sexuality is already widely known, as long as the intention behind the disclosure is not malicious.
Mr Grant started working for the Lytham Land Registry office, which employed about 300 people, in 2003. He did not initially tell his colleagues he was gay but eventually chose to make the information public.
He was then promoted to a post at the Coventry office, but chose not to tell his colleagues there about his sexuality. However, his line manager, Sharron Kay, who knew that he was gay, told another colleague before he even started working there that there was no point “fluttering your eyelashes at him, he’s gay.”
Mr Grant alleged that he was also subject to various other acts of sexual orientation discrimination and harassment by Ms Kay during his employment at the Coventry office, including her making a “limp wrist” gesture, being uncooperative about letting him use a fleet car and querying whether he really had been ill after a period of sick leave.
He argued that Ms Kay had engaged in a campaign to undermine him at work because of his sexuality.
Tribunal and EAT decisions
The tribunal concluded that six of the incidents that Mr Grant complained of amounted to direct discrimination.
It found that Ms Kay had chosen to tell a colleague about Mr Grant’s sexuality when there was no need to do so, and in circumstances where she would not have revealed the sexual orientation of a heterosexual comparator. This created a detriment because Mr Grant did not want the information to be divulged and because he was unable to control how his new colleagues learnt of his sexuality.
It also found that he had been treated less favourably by reason of the fact that he was gay and that he had been subject to harassment by Ms Kay as her comments had created a “humiliating, degrading and offensive” environment at work.
The EAT overturned that decision. It said that the Tribunal had failed to take into account the fact that Mr Grant had already “come out” at his previous office and Ms Kay was aware of this. There was no evidence to show that Mr Grant did not want his sexuality to be revealed. Nor had it provided adequate reasons explaining what weight, if any, it had placed on Mr Grant’s openness about his sexual orientation, a key factor the tribunal should have considered when assessing the detriment that he had suffered.
Court of Appeal decision
The Court of Appeal has agreed with the EAT’s decision.
Looking at two of the six complaints made by Mr Grant, it said that the fact that he had “come out” in Lytham was a “highly significant factor” as to whether there had been discrimination. Any of the 300 or more employees there could, in conversation with a colleague at Coventry, have easily revealed the fact that he was gay as they were not sworn to secrecy.
It would be bizarre, said the Court, if an employee became liable for either direct discrimination or harassment because they innocently disclosed information that someone else did not want to be disclosed.
By putting that information in the public domain, the Court said that Mr Grant had run the risk that he might become the focus of conversation and gossip. As long as there was no “ill intent” when the information was disclosed in the course of conversation, then the person could not be deemed to have committed an act of discrimination.
“That is so even if the victim is upset at the thought that he or she will be the subject of such idle conversation."
Finally, it held that as Ms Kay had not intended to harass Mr Grant it was not open to the tribunal to conclude that the incidents constituted either direct discrimination or harassment.
It remitted the case to the tribunal to consider the other four complaints that Mr Grant had made.