The Court of Appeal has confirmed in Grant v HM Land Registry that the fact that a gay employee has come out will be highly relevant in assessing whether subsequent conduct by colleagues amounts to discrimination or harassment.

In this case Mr Grant had disclosed his sexuality to his colleagues while working in the Land Registry’s Lytham office.  He was subsequently promoted to the Coventry branch, but had not yet disclosed the fact he was gay to his new colleagues there.  A manager did however disclose that information without his knowledge or consent.  He argued that this amounted to discrimination and harassment.

The Court of Appeal considered that the fact that he had already "come out" in Lytham was a “highly significant factor”.  It held that “the mere innocent disclosure” of information which Mr Grant had made public elsewhere himself would not make the employer liable for discrimination or harassment.  This was the case even if the disclosure was unwanted and he was disappointed or upset by being deprived of the chance to divulge the information in his own time.  It would, said the Court of Appeal, “make a mockery of discrimination law” to impose liability where the employer had no reason to believe that disclosure would cause the individual concern.

The Court considered the implications for other areas of discrimination.  If, for example, an individual voluntarily discloses that he or she has an illness, is pregnant or has changed religion then, provided there was no ill intent, discussion “even in idle gossip” of that fact between colleagues should not give rise to disability, sex, or religious discrimination.  Once such information has been put into the public domain by the individual, the Court of Appeal considered that he or she has taken the risk that the information may be discussed by colleagues.

It is important however to note that the fact that a gay employee has come out does not mean subsequent references to his sexuality can never amount to discrimination or harassment.  It will depend on the particular circumstances.  It will be relevant, said the Court of Appeal, to consider “to whom a remark is made, in what terms and for what purpose.”  How conduct is perceived by the individual victim remains a key consideration.

There is, of course, a crucial distinction between information which employees disclose to their employer in confidence and information which is freely made public.  Individuals have the right to keep their sexuality private and “outing” a gay employee may well give rise to discrimination.