The Court of Appeal has upheld a decision of the EAT that an employee who had "come out" at work, had not been directly discriminated against or harassed, when references were then made about his sexuality in the workplace (HM Land Registry v Grant). There was no evidence that the comments were made with an intention to harass Mr Grant, and, as his sexuality was already disclosed, the comments could not constitute direct discrimination.
Mr Grant worked for the Land Registry in its Lytham office, and he made colleagues there aware he was gay. He subsequently moved to the office in Coventry, and chose not to disclose his sexuality immediately. His line manger however made comments regarding his sexuality to his new colleagues and Mr Grant brought claims for direct discrimination and harassment. Both claims were dismissed by the Court of Appeal.
It was recognised by the Court that revealing a person's sexuality, when they didn't want it to be disclosed, could constitute an act of direct discrimination. However, in this case, as Mr Grant had made his sexuality known in the Lytham office, any one of his Lytham colleagues could have innocently revealed it to their Coventry colleagues, and they would have been justified in assuming Mr Grant would have no objection to such a disclosure. On that basis, the Court concluded the comments did not constitute direct discrimination, as there could be no less favourable treatment. Further, the tribunal found no evidence of any intention to "create an intimidating, hostile, degrading, humiliating or offensive environment" for Mr Grant, and, although Mr Grant gave evidence that the comments upset him, the Court did not view the effect of the comments, in the circumstances, as being sufficiently serious so as to qualify as "humiliating" or "degrading". It was not, therefore, open to them to make a finding of harassment.
Impact on employers
- The Court accepted that just because an employee has revealed their sexuality, this did not automatically mean they could not be discriminated against or harassed: this would depend on the circumstances. Therefore, it should not be assumed that simply because an employee has made their sexuality known, they cannot be subject to discrimination or harassment on these grounds. This case was very fact specific, and the harassment claim failed due to a lack of evidence of the intention to harass on the part of the person making the comments, and of a humiliating or degrading effect on the claimant. In fact, employees who are open about their sexuality are perhaps more likely to be able to claim that any derogatory comments or less favourable treatment is because of their protected characteristic.