Employee's openness about his sexuality relevant to claim

The decision of the Employment Appeals Tribunal (EAT) in HM Land Registry v Grant concerned claims of direct discrimination and harassment on the ground of sexual orientation, which arose out of a series of incidents involving Mr Grant’s manager. The essence of the case was that Mr Grant had been ‘outed’ at work against his wishes and he argued that this amounted to detrimental treatment. Although he had previously ‘come out’ when working at another branch of the employer, he had waited for some time before taking this step; he felt that he had the right to choose whether, when and how to reveal his sexual orientation following a move to a new office.

Many of Mr Grant’s accusations were accepted by the Employment Tribunal, but in reaching its conclusions the Tribunal did not appear to consider it relevant that he had previously ‘come out’, albeit in a different branch of the employer. The EAT took a different view. It found that the Tribunal had erred in a number of respects when analysing the legal issues before it – in particular, it had failed to take into account the implications of two facts; that the claimant had previously come out, and that his new manager was aware of this. The Tribunal’s various failures affected its conclusions in respect of the direct discrimination and harassment claims, and the claim was remitted back to the tribunal to look at again. This case emphasises three key points:

1. Passing remarks - Apart from illustrating what a minefield engaging in conversations or making remarks of a personal nature can be, the case shows how difficult Tribunals can find it to apply the different elements that make up a statutory offence of discrimination – for instance, the requirement to correctly identify the material circumstances of a comparator for the purposes of a direct discrimination claim, and how key facts such as the claimant’s openness about his sexuality at a different workplace and his line manager’s knowledge of this, can be overlooked when determining whether the necessary elements of a claim, such as detriment, have in fact been made out.
2. Importance of context - The practical effect of the EAT’s ruling is that an employee who has been open about his or her sexual orientation in one workplace may have difficulty in persuading a Tribunal that he or she suffered detrimental treatment when ‘outed’ at a different office. This is because a person’s openness about private matters such as sexual orientation goes directly to the issue of whether he or she can really claim to have suffered a detriment in the event that a colleague says or does something that is, in the victim’s view, out of order. As the EAT stresses, the success or failure of the kind of claim before it will depend on context.
3. Analysing Intention - One of the incidents that Mr Grant complained of was that the manager had said in the course of a telephone conversation to a divorced female colleague: ‘Don’t go fluttering your eyelashes at him, he’s gay.’ The EAT was of the view that this remark was not inherently discriminatory and that the Tribunal had failed to analyse whether the manager had had a discriminatory intention when making it. A finding of such intention would otherwise have supported its conclusion of less favourable treatment in respect of the direct discrimination claim.