HM Land Registry v Grant

An Employment Tribunal must address the central facts and legal issues on which its discrimination findings depend. In claims of direct discrimination, less favourable treatment, the reason for treatment and detriment may be intertwined. Less favourable treatment and detriment are assessed objectively, while taking account of the claimant’s perception and all material circumstances. In harassment claims, unwanted conduct may be unlawful because of its purpose or its effect; reasonableness is relevant to the effect limb, not the purpose limb. Intention to discriminate is unnecessary, but the alleged discriminator’s intention may be important where the conduct is not inherently discriminatory. The significance of disclosing a person’s sexual orientation depends on context. Failure to analyse a central contextual fact may amount to an error of law and require remission to a fresh tribunal.

Mr Grant, a homosexual employee of HM Land Registry, brought claims under the Employment Equality (Sexual Orientation) Regulations 2003 concerning twelve alleged acts of direct discrimination and twelve alleged acts of harassment by his line manager, Ms Kay. The Employment Tribunal upheld six discrimination complaints and five harassment complaints.

The employer appealed, contending that the Tribunal had failed to address the fact that Mr Grant had voluntarily disclosed his sexual orientation while working at Lytham, where it became widely known, and that Ms Kay knew this. The appeal also concerned the Tribunal’s failure to state whether Ms Kay intended to undermine Mr Grant because of his sexuality, or had made insensitive but non-targeted remarks. The central issue was whether those omissions rendered the Tribunal’s findings unsafe.

1. Appeal allowed. The Tribunal’s decision could not stand because it failed to address two central matters: Mr Grant’s voluntary disclosure of his sexual orientation at Lytham and Ms Kay’s knowledge of it; and whether Ms Kay was attempting to undermine him because of his sexual orientation.
2. A Tribunal need not deal with every point or item of evidence. It must, however, give sufficient reasons on the central factual disputes and legal arguments which determine why one party succeeds and the other fails. Failure to address a matter of central significance is an error of law.
3. Under regulations 3 and 5 of the Employment Equality (Sexual Orientation) Regulations 2003, the issues of difference in treatment, less favourable treatment, the reason for treatment and detriment may be intertwined. The assessment must be objective, but must take account of the claimant’s perception and all material circumstances. An unjustified sense of grievance does not amount to detriment.
4. Harassment requires unwanted conduct which has the purpose or effect of violating dignity or creating the proscribed environment. Purpose and effect are separate routes to liability. The reasonableness qualification applies to the effect route. Context is material, and individual incidents may acquire significance cumulatively.
5. Intention to discriminate is not required. Nevertheless, where conduct is not inherently discriminatory, the alleged discriminator’s intention, including whether the conduct was intended to undermine the claimant or was innocently made, may be highly relevant to whether the treatment was objectively less favourable or detrimental and whether the effect was reasonably perceived.
6. The Tribunal’s findings concerning later incidents depended materially on its conclusions about the first two incidents. The possibility that some findings might independently have been permissible did not make the overall decision plainly and obviously right despite the omissions.
7. The case was remitted to a fresh Tribunal. The fresh Tribunal was to consider jurisdiction, the six discrimination allegations and the five harassment allegations. The other dismissals stood.

• Employment Tribunal: upheld six of twelve direct discrimination complaints and five of twelve harassment complaints against HM Land Registry.
• Employment Appeal Tribunal: allowed the employer’s appeal and remitted the specified issues to a fresh tribunal.