Grant v HM Land Registry

Direct discrimination requires objectively less favourable treatment on the protected ground. Harassment by effect requires conduct which actually produces a prescribed adverse environment and which can reasonably be regarded as doing so. The claimant’s perception is relevant but not decisive.

Where a person has voluntarily made a protected characteristic widely known without requesting confidentiality, an innocent conversational disclosure will not ordinarily constitute a detriment or harassment merely because that person wanted to control later disclosure. Context and intention remain relevant. Discrimination law should not be used as a substitute for enforcing privacy rights, although an unauthorised disclosure may, in appropriate circumstances, amount to discrimination or harassment.

The appellant, a gay employee of HM Land Registry, alleged direct sexual orientation discrimination and harassment by his line manager after transferring from Lytham to Coventry. The Employment Tribunal upheld six allegations of direct discrimination, five of which it also regarded as harassment.

The Employment Appeal Tribunal allowed the employer’s appeal. It held that the Tribunal had failed to consider the appellant’s earlier decision to make his sexual orientation widely known at Lytham. It set aside all six findings and remitted them to a fresh tribunal.

The employee appealed, seeking restoration of the Tribunal’s findings. The central issues were whether the earlier disclosure was material to detriment and harassment, and whether two innocent references to the employee’s sexual orientation could lawfully support the Tribunal’s conclusions.

1. Appeal dismissed unanimously. The Employment Tribunal had failed to consider a crucial fact: the appellant had voluntarily made his sexual orientation widely known at his former workplace without requiring confidentiality. The Employment Appeal Tribunal was therefore correct to set aside its findings.

2. Direct discrimination under regulation 3 of the Employment Equality (Sexual Orientation) Regulations 2003 requires objectively less favourable treatment on grounds of sexual orientation. A detriment exists where a reasonable worker would or might regard the treatment as detrimental. An unreasonable or unjustified sense of grievance is insufficient.

3. Harassment under regulation 5 may arise from the purpose or the effect of unwanted conduct. Harassment by effect requires the prescribed consequence actually to occur and to be one which can reasonably be attributed to the conduct. The claimant’s perception is relevant, but the tribunal must assess all the circumstances. The speaker’s intention may be relevant to the effect and to whether the claimant’s response was reasonable.

4. The first two incidents involved an innocent disclosure to a colleague and a question about the appellant’s male partner at dinner. Since the appellant had already put his sexual orientation into the public domain, his grievance about its further innocent dissemination was unreasonable and did not constitute a detriment. His discomfort did not amount to a violation of dignity or an intimidating, hostile, degrading, humiliating or offensive environment. Those statutory terms must retain sufficient force to exclude trivial acts causing minor upset.

5. The Tribunal’s comparators were also defective. A heterosexual comparator’s marriage or widely known affair could likewise reveal sexual orientation or relationship status. In any event, it was difficult to characterise the disclosure as less favourable treatment where there was no reason to suppose that the appellant would object.

6. This was not an Article 8 claim. Discrimination legislation cannot serve as a surrogate means of enforcing privacy rights. The court nevertheless accepted that confidential disclosure or the unauthorised outing of a person could, depending on the circumstances, engage privacy rights and amount to discrimination or harassment.

7. The first two complaints could not lawfully succeed. The case was remitted to a different Employment Tribunal to determine only the remaining four complaints.

1. Court of Appeal (Civil Division): Dismissed the employee’s appeal from the Employment Appeal Tribunal. It held that the first two complaints could not amount to direct discrimination or harassment and remitted only the other four complaints to a different Employment Tribunal: [2011] EWCA Civ 769.

2. Employment Appeal Tribunal: Allowed the employer’s appeal, set aside the six findings of direct discrimination and five findings of harassment, and remitted all those complaints to a fresh tribunal: UKEAT/0232/09/DA.

3. Employment Tribunal: Upheld six allegations of direct sexual orientation discrimination, five of which it also found to be harassment. It dismissed the remaining allegations.