HM Land Registry v Grant EAT/0232/09

sexual orientation discrimination | harassment

The Employment Appeal Tribunal (EAT) has held that an employment tribunal that held that an employee had been discriminated against on the ground of sexual orientation had failed properly to take into account, among other facts, that the employee had actively "come out" while working at a different office.

Mr Grant, a homosexual man, worked at the Land Registry’s Lytham office, where he was a team leader. While at Lytham, Mr Grant chose to “come out”, and it became well-known among many of his colleagues there that he is gay. Inevitably, some of those colleagues would deal with, and move to, other offices, and that knowledge might spread. In October 2006, Mr Grant was promoted, and moved to his employer’s Coventry office. A number of incidents then occurred, involving Mr Grant’s new manager (Ms Kay, who knew he is gay), which he later claimed amounted to sexual orientation discrimination. The primary incidents were the first two, in which Ms Kay made comments to two other people that Mr Grant is gay. Other incidents included Ms Kay making a “limp wrist” gesture towards Mr Grant, who brought 12 complaints of discrimination against Ms Kay, and thereby the Land Registry, in the tribunal.

Mr Grant’s case was that Ms Kay, for whose actions the Land Registry was responsible, had undertaken a campaign to belittle him because of his sexuality, and that she had set out to cause him discomfort and make things difficult. A key part of the Land Registry’s defence was that Mr Grant had “come out” in Lytham and that Ms Kay knew this, and therefore that there was no basis to suggest that Ms Kay deliberately “outed” Mr Grant contrary to what she understood to be his wishes, nor to suggest that references to his sexual orientation were unwarranted. The tribunal, however, upheld six of Mr Grant’s complaints of discrimination (five of which amounted to harassment). It specifically upheld the first two complaints, finding that Ms Kay had deliberately “outed” Mr Grant against his wishes. The Land Registry appealed to the EAT.

The EAT upheld the Land Registry’s appeal, noting that none of the discriminatory acts was obviously and intrinsically discriminatory, and each finding relied on the validity of the others. The EAT found it disturbing that, in the tribunal’s judgment, it failed to mention or analyse the fact that Mr Grant had “come out” in Lytham, and that Ms Kay knew this, whether in evaluating her reasons for saying what she did, in considering the reasonableness of Mr Grant’s reaction to what she said, or in reaching an objective view of whether or not there had been less favourable treatment or a detriment to Mr Grant. This was an error, and the EAT remitted the case to a fresh tribunal for reconsideration.

The EAT did, however, expressly note that, if a tribunal comes to the conclusion that a gay employee has been “outed” against his wishes, that alone may well constitute an act of discrimination or harassment. The EAT stated that it is incorrect to assume that passing remarks that “out” a homosexual are always so trivial as to have no legal consequences.

Case transcript of HM Land Registry v Grant (Microsoft Word format, 122K) (on the EAT website)

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