Discrimination Law Update - Sexual Orientation

The recent case of Grant v HM Land Registry has provided employers with useful clarification of the scope of sexual orientation harassment and discrimination. Tom Stenner-Evans, a Solicitor in the Employment Team, reviews the case and considers how employers should approach this tricky issue.

Background to the case

Mr Grant worked at the Land Registry's Lytham office, where he chose to tell his colleagues that he was gay. He was then promoted to a post in the Coventry office and decided initially not to reveal his sexuality to his co-workers. However, his new line manager made various references to Mr Grant's sexuality to his new colleagues, undermining Mr Grant's desire to keep his sexuality private. Mr Grant brought a claim for sexual orientation discrimination and harassment in the Employment Tribunal.  Eventually, the case made its way up to the Court of Appeal following an intervention by the Equality and Human Rights Commission.

Decision of the Court of Appeal

The Court of Appeal held that there was no suggestion that Mr Grant required, or even requested, his Lytham colleagues to keep his sexual orientation a secret. They would have been justified in assuming that Mr Grant would have no objection to his sexual orientation becoming common knowledge in the Coventry office.

The Court of Appeal therefore decided that Mr Grant had suffered neither direct discrimination nor harassment. Whilst it acknowledged that an employee should be entitled to reveal their sexual orientation in confidence, and that breaching that confidence might involve discrimination, it further held that Mr Grant had already put his sexuality into the public domain (albeit in a different office), and had therefore taken the risk that his colleagues might discuss it. The disclosures made by Mr Grant's line manager were not intended to violate his dignity or create an intimidating, hostile or degrading environment and were not found to constitute discrimination or harassment, even though Mr Grant was upset by them.  Of particular significance was the Court's comment that Tribunals should not allow trivial acts to be caught by the concept of discrimination or harassment.

The Grant decision suggests (as did the Acas Guide to the Sexual Orientation Regulations), that "outing" someone without their express permission may constitute harassment. It appears from the Court's decision in Grant that, where an employee is not openly gay and a colleague, even without having the intention of harassing him, alludes to his sexual orientation in some way, it may well be reasonable for the employee to consider that harassment has occurred.

The Grant case illustrates that engaging in any conversation of a personal nature in the workplace is not without risk.  However, the Court of Appeal was not prepared to broaden the scope of discrimination in this instance, which should be somewhat reassuring for employers. As is often the case in discrimination law, it is clear that the success or failure of this kind of claim will very much depend on the facts and circumstances of the case.

For more information, please contact Tom Stenner-Evans on tom.stenner-evans@michelmores.com or 01392 688 688.  Alternatively, you can follow him on Twitter at @TomStennerEvans and @MichEmployment