Can the disclosure of a person’s sexual orientation amount to direct discrimination and harassment? – Court of Appeal decision
Grant v Land Registry
In Grant v Land Registry the Court of Appeal has held that as an employee had disclosed his sexual orientation widely to colleagues in one work location it was not possible for the subsequent disclosure of that by a colleague at a different work place to constitute direct discrimination or harassment.
If an employee has disclosed his or her sexual orientation during the course of their employment, innocent discussion or disclosure of this between other employees cannot constitute direct discrimination or harassment. However, it is important to note that initial disclosure should be made by the employee of his/ her own free will. Any attempt to “out” that person or any pressure put on that person to disclose their sexual orientation will be seen as an act of discrimination on ground of sexual orientation and constitute harassment.
Mr Grant, who is a homosexual, works for the Land Registry. He was initially employed at its Lytham office and after several years was promoted to a post in the Coventry office. Mr Grant had disclosed his sexuality to colleagues at Lytham but did not wish to disclose this information to colleagues at Coventry immediately. On commencing work in Coventry, Mr Grant claimed that he was subjected to various acts of sexual orientation discrimination and harassment by his line manager, which included: his manager telling another colleague that he was gay; and his manager saying “How is your partner?, How is he?” whilst at a dinner with other colleagues.
The ET found that six allegations constituted direct sexual orientation discrimination and of them five also amounted to harassment. The ET found the Mr Grant did not want his manger to reveal his sexuality to colleagues and it was reasonable for him to feel that her actions were humiliating. The ET attached no relevance to the fact that Mr Grant had previously disclosed his sexuality to colleagues in Lytham.
The ET’s decision was overturned by the EAT and that decision has been up-held by the Court of Appeal (CA). The CA attached great significance to the fact that Mr Grant had revealed he was gay to colleagues in Lytham, an office with three hundred employees and had not requested those colleagues keep the information confidential. As such had any of those colleagues revealed in conversation that Mr Grant was gay he could have had no objection to that.
The CA considered that putting facts about ones private life into the public domain means that individuals must take the risk that they could become the focus of conversation and gossip. Provided there is no ill intent in such conversations they would not constitute discriminatory acts. The crucial earlier disclosure by Mr Grant resulted in it not being open to the ET to conclude that the incidents (detailed above) constituted either direct discrimination or harassment. However the CA accepted that it was important gay people should be able to reveal their sexual orientation on a confidential basis and breaking that confidence (i.e. by “outing” someone) may constitute direct sexual orientation discrimination.