When people within an organisation discuss the sexual orientation of one of the employees, does this constitute sexual discrimination? Does it matter if they are open about their sexuality or not? These questions were dealt with in a recnt case in The Court of Appeal.
the Court decided, in Grant v HM Land Registry, that an idle conversation about someone being gay, when he had already made it public, will not constitute discrimination.
It was accepted by both parties that Mr Grant is gay. He had been ‘out’ at Lytham Land Registry office. On transferring to the Coventry office he did not reveal his homosexuality. His new manager, who knew about Mr Grant being open to the Lytham office about being gay, mentioned his sexual orientation to a colleague at Coventry. Mr Grant lodged a claim with the employment tribunal for discrimination based on his sexual orientation. He failed, but appealed the decision.
The Court of Appeal found that Mr Grant’s manager had no ill purpose when he mentioned the fact Mr Grant was gay to a colleague and therefore there could be no direct discrimination or harassment. The Court emphasised that even if Mr Grant was upset by the disclosure, the effect did not amount to harassment, and tribunals ought not to allow trivial acts to be caught by the concept. ‘Outing’ someone could, however, be an act of direct discrimination and harassment in other circumstances.
Our advice is that this case was decided on very particular facts and that employers must still be wary about their staff talking about a particular employee or worker’s sexual orientation, unless that person has made it absolutely clear that they are happy for this to happen. What this case does show is that, if it is widely known amongst an employer’s staff that a particular individual is of a certain sexual orientation, that just talking about it will not be discrimination as long as there is no ill intent and the conversation is ‘trivial’. In practice, the dividing line may be a difficult one to prove.
For a free initial consultation please call 01202 499255 and Kate Fretten or Paul Burton will be happy to discuss any questions you may have.
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