“Outing” a gay colleague whose sexuality is not widely known amongst colleagues may appear on the face of it to be discrimination on the grounds of sexual orientation.

However, the EAT has ruled that it is relevant to consider whether the employee was openly gay at a previous workplace, but not at their new workplace following an inter-office transfer.

In this case an employee of HM Land Registry (HMLR) was open about his sexuality whilst working in Lytham, but his sexuality was not widely known when he moved to the Coventry office. His new manager was aware of it, however, and made a number of remarks about it in front of colleagues which led the employee to bring a claim for discrimination and harassment. The EAT ruled that the fact the new manager was aware that the employee had been open about his sexuality whilst working at the Lytham branch should be taken into account.

It may now be difficult for an employee who has been open about their sexual orientation in one office of an organisation to show that they have suffered detrimental treatment if they are “outed” at a different workplace. However, the claimant in this case makes a forceful point when he says that it is his right to control how, when and to whom his sexuality becomes known, so it will be interesting to see the outcome of the re-hearing by the tribunal.

HM Land Registry v Grant