An interesting discrimination law judgment came the Court of Appeal on Friday in Grant v H.M Land Registry.

Chris Grant worked for the Land Registry, initially at Lytham, where he was “out”; but when he got promoted to a job in Coventry, he decided to keep quiet about at first about being gay, intending perhaps to come out when he felt comfortable in doing so. But his new line manager already knew he was gay, and as Mr Justice Elias explains (para. 21 of the judgment):

In the course of a telephone conversation between Sharron Kay, the claimant’s new line manager, and Ms Crothers, Ms Crothers hinted to Sharron Kay that she thought the claimant was very pleasant. She had met him at an assessment day and spoken to him briefly and they had got on well. Sharron Kay knew that Irene Crothers was single and she said to her “Don’t go fluttering your eye lashes at him, he’s gay.”

This is, pretty obviously, the sort of conversation that happens every day in offices everywhere. The legal question was whether, in revealing Mr. Grant’s sexuality, his boss discriminated against him and/or harassed him on grounds of sexual orientation, contrary to regulations 3 and 5 of the Employment Equality (Sexual Orientation) Regulation 2003, which were in force at the time, the facts having occurred before sections 12, 13 and 26 of the Equality Act 2010 came into force last year.¬† The same question arose in relation to a second incident

.. when the claimant attended a dinner with some of his new colleagues. There were four people at the meal, namely the claimant, Alison Bradbury, Sharron Kay and Irene Crothers. The three women all knew that the claimant was gay. Sharron Kay had inadvertently been told by Alison Bradbury, and she in turn had told Irene Crothers in the telephone conversation, although the claimant was not at the time aware that Ms Crothers knew he was gay. Sharron Kay asked the claimant about his partner, saying “How is your partner, Chris? How is he?”

Initially an Employment Tribunal in Birmingham held that these were both acts of discrimination and harassment, but the Land Registry won an appeal to the Employment Appeal Tribunal on the basis that the original tribunal had failed to take into account the fact that Mr. Grant had been open about his sexuality in Lytham. The Court of Appeal has upheld the EAT’s approach. In relation to the phone call, Elias J says (paras. 45-6)

In my judgment, the fact that the claimant had “come out” in Lytham is a highly significant factor … This is so whether Sharron Kay knew that this was the case or not. The point can be tested in this way. At any time any one of the three hundred or more employees at Lytham could, in conversation with a colleague at Coventry, have revealed perfectly innocently the fact that the claimant was gay. They would have been justified in assuming that the claimant would have no objection to this … If Irene Crothers had been informed by a Lytham employee that the claimant was gay, it would in my view be bizarre if that employee could, by the mere innocent disclosure of that information, be liable for either direct discrimination or harassment. The disclosure would still in fact have been unwanted by the claimant, and no doubt the claimant would have been equally upset by the fact that he was deprived of the opportunity to divulge this information in his own way and in his own time. But it would make a mockery of discrimination law to impose liability in these circumstances. A defendant would be liable for discrimination for doing something which the claimant had reasonably led him or her to believe would not cause the claimant concern.

The implications of a finding of discrimination in these circumstances would be far reaching.

and in relation to the dinner conversation (para. 51):

There was one person at the dinner party who, as far as he knew, was not aware of that fact and he was made to feel uncomfortable by the reference. But again, I do not think that he was justified in objecting to Ms Kay communicating this information, even in his presence. It was not a detriment and, in my judgment, could not properly be so described. Nor in my view is it enough to say that he was made to feel uncomfortable. Indeed, the Tribunal’s finding was that for a short period over dinner the claimant felt uncomfortable. Again, given that it was not the purpose of Ms Kay to humiliate or embarrass him, I do not think that a tribunal is entitled to equate an uncomfortable reaction to humiliation. I accept that there may be circumstances where revealing a gay person’s identity in this way in his presence could be so described, but not in these circumstances.

I think the Court of Appeal’s approach must be right. I’m not sure a breach of privacy necessarily amounts to sexual orientation discrimination – and the concern that the two concepts must be kept separate comes across clearly in Elias J’s judgment (see paragraph 44). But in any event, it seems to me wrong for someone to be able in effect to convert his (in itself perfectly reasonable) wish to control how and when he reveals personal information about which he has in another context been open into a legally enforceable right against others.

Had the claimant won on this principle, I think it would have had an incredibly “chilling effect”, to use a phrase often heard in another context, and not only on office gossip. Wouldn’t you always have needed prior permission to mention a colleague’s sexuality to a third person, or to ask after a colleague’s partner in the presence of others – just in case what you said might hurt them?


2011-07-06T20:10:00+00:00Tags: , , |