Whilst it is well established that an employee has every right to choose whether to disclose their sexuality to an employer, it is less clear whether an employee, having openly revealed their sexuality to one set of colleagues, can claim to have been harassed or discriminated against when this information is shared with others in the business. This interesting issue was considered by the Court of Appeal in Grant v HM Land Registry.
Mr Grant worked at the Lytham office of the HM Land Registry. Grant was open about his sexual orientation with his colleagues in Lytham. However, when he was promoted and transferred to the Coventry office, Grant wished to disclose his sexual orientation to his new colleagues in his own time. However, Grant's new line manager, Ms Kay, already knew he was gay and made other colleagues in the Coventry office aware of his sexuality. Before Grant had started at Coventry, Ms Kay had said to female colleague, "Don't go fluttering your eye lashes at him, he's gay". Later, once Grant had begun working at Coventry, Kay asked him in front of others "How is your partner, Chris? How is he?" Grant claimed that these incidents, among others, evidenced that he was treated less favourably because of his sexual orientation and had the effect of creating an intimidating working environment. Grant brought a claim for sexual orientation discrimination and harassment.
The Court of Appeal dismissed Grant's claim. The following factors were important in reaching this decision:
- Grant had chosen to reveal his sexual orientation at the Lytham office
- At any one time, one of the Lytham employees, when talking to a colleague in Coventry, could have innocently revealed that Grant was gay
- There was no suggestion that Grant had asked his Lytham colleagues to keep his sexual orientation a secret; further, his colleagues would have been justified in assuming that he would have no objection to such a revelation
- Kay had not referred to Grant's sexuality with the purpose of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him; moreover the harassment claim could not be made out simply because Grant was "upset" by the comments
The court acknowledged that it is important that gay people should be able to reveal their sexual orientation in confidence, and that breaching that confidence could lead to a breach of Article 8 of the European Convention on Human Rights and sexual orientation discrimination. However, it also emphasised that if someone has chosen to widely reveal their sexual orientation it puts their case in a different category.
The Court accepted that the fact that an employee has "come out" does not mean that subsequent remarks or references to their sexuality cannot amount to discrimination or harassment. This will depend on the circumstances, including to whom the remark was made, in what terms and for what purpose. However, our advice would be to err on the side of caution and, if you become aware of an employee making comments along the lines of those made by Ms Kay, to have a quiet word with them ...