Grant v HM Land Registry & Anor  EWCA Civ 769
Appeal against decision to remit discrimination claims to a fresh tribunal after the EAT had found the original decision flawed. Appeal dismissed.
The claimant began working for the respondent in 2003, where he had revealed to staff that he was gay. In 2006 he transferred to another office but wished to tell staff that he was gay in his own time. His line-manager revealed his sexual orientation to colleagues even before he started work at the office and the claimant, in subsequent proceedings, made several allegations relating to her behaviour, six of which were found to amount to direct sexual discrimination and harassment. The EAT overturned those findings, concentrating on two specific incidents where the line manager had revealed the information to another member of staff in a telephone conversation and made a remark alluding to the claimant's sexuality at a dinner with colleagues.
In this judgment, Elias LJ reviews the two core incidents, the conclusions of the ET and the EAT and the submissions of counsel in this appeal. In his discussion he makes several general points about claims of this nature remarking that "Discrimination law cannot be used as a surrogate to enforce rights of privacy". He then concludes that the fact that the claimant had come out was highly significant and that (para 45-46) it would make
"a mockery of discrimination law to impose liability in these circumstances. A defendant would be liable for discrimination for doing something which the claimant had reasonably led him or her to believe would not cause the claimant concern....
…..The implications of a finding of discrimination in these circumstances would be far reaching. Similar concepts of direct discrimination and harassment are found in other discrimination legislation, relating to such areas as sex, religion, race and disability. An individual may choose to make generally known in the workplace certain aspects of his or her private life, such as the fact that he or she has contracted some debilitating illness, or is pregnant, or has become a Christian. In my judgment if that information is discussed in the course of conversation, even in idle gossip, provided at least there was no ill intent, that would not make the disclosure of that information an act of disability, sex or religious discrimination, as the case may be. That is so even if the victim is upset at the thought that he or she will be the subject of such idle conversation. By putting these facts into the public domain, the claimant takes the risk that he or she may become the focus of conversation and gossip."
Further, as there was no finding that the line manager intended to harass the claimant it was not open to the Tribunal to conclude that the incidents constituted either direct discrimination or harassment. The matter was therefore remitted to hear the other four remaining complaints.
Neutral Citation Number:  EWCA Civ 769
Case No: [A2/2010/1066/EATRF]()
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
The Hon Mr Justice Langstaff sitting with two lay members
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE MUMMERY
**LORD JUSTICE ELIAS
LORD JUSTICE PATTEN
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HM LAND REGISTRY (Respondent)
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THE EQUALITY AND HUMAN RIGHTS COMMISSION (Intervener)
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Ms Sandhya Drew and Mrs Jane Russell (instructed by Messrs Russell, Jones & Walker) for the Appellant
Mr John Cavanagh QC and Ms Anya Proops (instructed by Messrs Flint Bishop LLP) for the Respondent
Ms Karon Monaghan QC (instructed by The Equality and Human Rights Commission (the Intervener)
Hearing dates : 9/10 March 2011
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Lord Justice Elias :
- The appellant is a male homosexual. He started working for the Land Registry in April 2003 at Lytham. He did not initially reveal that he was gay, but subsequently he chose to make this public to his colleagues at Lytham. There were over three hundred employees at that office.
- In October 2006 he was promoted to a post at the Coventry Land Registry. He did not tell his colleagues at that office that he was gay. He wished to reveal this fact in his own time, when he felt comfortable about doing so. He alleged that whilst at Coventry he was subject to various acts of sexual orientation discrimination and harassment from his line manager, Sharron Kay.
- The Employment Tribunal found that six allegations of direct sexual orientation discrimination were proved, five of which also amounted to harassment. Six other allegations of direct discrimination, and seven of harassment, were dismissed. With respect to these matters, either the Tribunal did not find the evidence reliable, or they considered that the claimant was over-sensitive.
- His employers appealed to the Employment Appeal Tribunal, essentially on the grounds that the Employment Tribunal failed to have regard to certain facts which ought to have been central to their legal analysis. It was alleged that the failure to have regard to them rendered their conclusions flawed. The facts relied upon were that the claimant had come out in Lytham and that Sharron Kay knew of this.
- The EAT upheld the appeal and remitted the case to a fresh tribunal to consider the six allegations of discrimination, and the five of harassment. Mr Grant now appeals against that decision and seeks to restore the findings of the Employment Tribunal.
- We are grateful for the submissions of counsel in this case. In addition to representations from Ms Drew and Mr Cavanagh QC who acted for Mr Grant and the Land Registry respectively, we also received oral and written submissions from Ms Monaghan QC, counsel for the Equality and Human Rights Commission, who were given permission to intervene in the proceedings.
The relevant law.
- The relevant principles of law are not materially in dispute, and I shall deal with them briefly.
- The concept of direct discrimination is found in regulation 3 the Employment Equality (Sexual Orientation) Regulations 2003:
"(1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if –
(a) On grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons …
(2) A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
- I draw attention to two aspects of this definition. First, the defendant must treat the appropriate comparator not only differently but less favourably. Second, the treatment must be on the proscribed grounds. Whether treatment is less favourable is to be determined objectively: see the observations of Lord Goff in R (on the application of Birmingham City Council) v Equal Opportunities Commission  AC 1155, 1193. It is not enough that a claimant believes it to be less favourable.
- Regulation 5 deals with harassment. It is defined as follows:
"(1) For the purpose of these Regulations, a person ("A") subjects another person ("B") to harassment where, on grounds of sexual orientation, A engages in unwanted conduct which has the purpose or effect of:-
(a) violating B's dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or an offensive environment for B.
(2) Conduct should be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect."
- It is to be noted that there is harassment either if the purpose of the conduct is to create the circumstances envisaged in (a) or (b), or if that is the effect of the conduct, even though not intended. Where it is the purpose, such as where there is a campaign of unpleasant conduct designed to humiliate the claimant on the proscribed ground, it does not matter whether that purpose is achieved or not. Where harassment results from the effect of the conduct, that effect must actually be achieved. However, the question whether conduct has had that adverse effect is an objective one - it must reasonably be considered to have that effect - although the victim's perception of the effect is a relevant factor for the tribunal to consider as sub-regulation 2 makes clear.
- In Richmond Pharmocology v Dhaliwal  ICR 724, Mr Justice Underhill P, giving the judgment of the EAT with respect to a similarly worded provision in the Race Relations Act 1976, held that in assessing whether the effect of the conduct, objectively viewed, fell within either of the two paragraphs:
"One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended that if it was evidently intended to hurt."
- Ms Monaghan submitted that this was erroneous because it confused purpose and effect. She says that the intention of the speaker can be relevant only where the purpose is in issue. I do not agree. When assessing the effect of a remark, the context in which it is given is always highly material. Everyday experience tells us that a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker. It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable.
- Regulation 6 provides that direct discrimination on grounds of sexual orientation will be unlawful where it results in an employee's dismissal or subjects him to any other detriment. It also renders unlawful the harassment of an employee.
- The concept of detriment has been considered by the House of Lords on a number of occasions. There is a detriment if "a reasonable worker would or might take the view that the treatment was in all the circumstances to his detriment": see per Lord Hope in Shamoon v Chief Constable of the Ulster Constabulary  UKHL 11;  ICR 37, para 35. Accordingly, as the court pointed out, an unjustified sense of grievance would not fall into that category. That would be the situation where the claimant genuinely considers himself or herself aggrieved, but objectively considered, there are no reasonable grounds for so thinking.
- By regulation 22(1) an employer is made liable for the acts of any person carried out in the course of his employment, whether done with the employer's knowledge or approval or not. It is accepted in this case that the Land Registry is liable for the acts of Sharron Kay.
The findings of discrimination.
- The six matters in respect of which the Tribunal found direct discrimination concerned the following conduct:
(1) That Sharron Kay, the claimant's line manager, told Irene Crothers, another colleague, that the claimant was gay. This was before the claimant commenced work at Coventry. Ms Kay had wanted to convey this information and the claimant was distressed when he heard that she had done so.
(2) That Sharron Kay asked the claimant "How is your partner, Chris? How is he?" at a dinner with colleagues in October 2006. Again the claimant was uncomfortable that this unwanted and pointed remark had been made.
(3) That Sharron Kay placed improper pressure upon the claimant to reveal the fact that he wanted to attend a lesbian/gay meeting (LGBT) when it was intended to be confidential. She strongly suspected what the meeting was about. He did not in the event attend the meeting because of her apparent hostility.
(4) That in March 2007 Sharron Kay made a limp wrist gesture to the claimant.
(5) That Sharron Kay was unco-operative with the claimant regarding the use of fleet cars whereas she had been co-operative with a heterosexual male colleague.
(6) That Sharron Kay, by an email on 2 October 2007, questioned whether the claimant was really ill after he had been absent with an illness for some time. The Tribunal found that the tone of the email was influenced by the fact that the claimant was gay.
In each of these cases the Tribunal found that the claimant was treated less favourably by reason of the fact that he was gay. Each of these matters, except the fifth concerning the use of the fleet cars, was also found to be an act of harassment contrary to regulation 5.
- There were a number of other allegations of direct discrimination and harassment which the Tribunal rejected. It is not necessary to set them out.
The significance of the first two incidents.
- The focus of the appeal before the EAT and indeed of this appeal, has been on the first two matters, namely the conversation between Sharron Kay and Irene Crothers, and the conversation at the dinner. The EAT concluded that the Tribunal's analysis of these two issues was flawed and rendered the conclusion with respect to them unsafe. However, the EAT also held that the finding of direct discrimination and harassment with respect to these two matters plainly influenced the Tribunal's conclusions with respect to the other four successful complaints, and accordingly these findings were not safe either.
- The claimant contended, although not particularly forcefully, that these four matters could stand on their own even if the findings with respect to the first two incidents could not be sustained. I do not accept that. The EAT was manifestly right to say that the findings would stand or fall together since each to some extent supported the others. For example, the limp wrist finding was made without any supporting evidence and despite the conclusion that the claimant's unsupported evidence could not be relied upon with respect to some other matters. It is inconceivable that it could have stood on its own. The finding with respect to the fleet car hire was said expressly to depend on the limp wrist finding and the comments to Irene Crothers. Accordingly, there is real doubt whether there would have been a finding of unlawful discrimination with respect to any of these matters if the Tribunal had concluded that there was no unlawful discrimination with respect to the first two complaints. Like the EAT, I shall therefore focus upon the analysis of those two incidents.
The conversation with Ms Crothers.
- In the course of a telephone conversation between Sharron Kay, the claimant's new line manager, and Ms Crothers, Ms Crothers hinted to Sharron Kay that she thought the claimant was very pleasant. She had met him at an assessment day and spoken to him briefly and they had got on well. Sharron Kay knew that Irene Crothers was single and she said to her "Don't go fluttering your eye lashes at him, he's gay."
- The Tribunal accepted that Sharron Kay wanted to convey to Ms Crothers that the claimant was not available, but this was not the only purpose behind her comment. The Tribunal went on to say:
"That, in our judgment, does not explain why she informed Irene Crothers that the claimant was gay. She could have conveyed that impression simply by stating that he was in a relationship. She made the comment she did because she wanted to tell Irene Crothers that the claimant was gay. Irene Crothers had not previously known that the claimant was gay. That was the end of the discussion. Neither Irene Crothers nor Sharron Kay relayed its content to the claimant. The claimant knew nothing about it for some time."
Apparently the complaint about this incident was first raised in a grievance a year or so later.
- The second incident occurred in early October 2006 when the claimant attended a dinner with some of his new colleagues. There were four people at the meal, namely the claimant, Alison Bradbury, Sharron Kay and Irene Crothers. The three women all knew that the claimant was gay. Sharron Kay had inadvertently been told by Alison Bradbury, and she in turn had told Irene Crothers in the telephone conversation, although the claimant was not at the time aware that Ms Crothers knew he was gay. Sharron Kay asked the claimant about his partner, saying "How is your partner, Chris? How is he?" The claimant made no complaint about this comment either at that time, and first raised it in his grievance in April 2007.
- The Tribunal concluded that Sharron Kay had asked the question in the way she did because she wanted openly to refer to the fact that the claimant's partner was gay. The Tribunal found that the claimant was uncomfortable at the question being asked openly in front of other work colleagues. He did not know that Irene Crothers knew that he was gay. The Tribunal did not, however, accept that Sharron Kay had emphasised or over-exaggerated the word "he" as the claimant had alleged.
The Crothers' conversation: the Tribunal's findings.
- The Tribunal concluded that in revealing the claimant's identity to Irene Crothers Sharron Kay committed an act of direct discrimination and harassment. The Tribunal's conclusion is contained in the following two paragraphs (paras 32 and 33 of their decision):
"We have concluded that Sharron Kay did inform Irene Crothers that the claimant was gay before the claimant took up his position on 1 October 2006. She told Irene Crothers that she should not be fluttering her eyelashes at the claimant because he was gay… We consider that this comment did amount to a detriment. The claimant, in our view, quite legitimately, did not wish people to discuss his sexuality and he wanted to retain control about how other people learnt about his sexuality in his new workplace. Details about an individual's sexuality are private matters and there is no need for other work colleagues generally to discuss them or comment upon them. We have considered carefully whether this less favourable treatment was on grounds of sexual orientation and asked ourselves why Sharron Kay revealed the claimant's sexuality to Irene Crothers. We consider that she did so precisely because he was gay and she wanted to inform Irene Crothers of this fact. We do not discount the fact that Sharon Kay also wished to convey to Irene Crothers that the claimant was unlikely to be interested in a relationship with her. That however was not the only or indeed the predominant reason for her comment: she could for example simply have said that he was unavailable/in a relationship but chose not to but chose instead to inform another colleague about the claimant's sexuality where there was simply no need to do so. To the extent that we are required to identify a hypothetical comparator, we consider that that would be an individual of a different sexual orientation who was not likely to be interested in a relationship with Irene Crothers. We consider that Sharron Kay would not have revealed their sexual orientation but would have conveyed their likely lack of interest in a different way, not specifically revealing his or her sexuality: for example, he's married/he's attached.
Further, we consider that informing Irene Crothers of the claimant's sexuality constituted unlawful harassment. The conduct was unwanted. The claimant did not want Sharron Kay to reveal his sexuality to other work colleagues. It had the effect of creating a humiliating environment for the claimant when he learnt about it. We consider that it was reasonable for the claimant to have felt that the treatment was humiliating and we do not consider in this regard that he was overly sensitive. Again, we consider that the harassment occurred specifically on the grounds of sexual orientation. See our conclusions on this point in paragraph 32 above. Sharron Kay made the comment she did because she wanted to inform Irene Crothers of the fact that the claimant was gay."
The dinner conversation.
- A similar conclusion was reached with respect to the dinner conversation in October 2006. As to direct discrimination, the Tribunal held that the question posed to the claimant was not necessarily equivalent to a similar question posed to a heterosexual man about his partner, and continued:
"... A closer comparison might be between a question asked about the claimant's male partner and a question asked about a heterosexual man's partner where he might feel a degree of discomfort about that question: for example if they were having an affair, (and Sharron Kay knew that fact), and the question revealed that fact. We do not consider that Sharron Kay would have asked that hypothetical comparator that question because she would have been more careful about it, or recognised its sensitivity. She did not however treat the claimant's sexuality with sensitivity. See for example our findings in paragraph 32 above. Further, we achieve the same result by asking ourselves 'why' Sharron Kay asked the claimant the question she did. There was no reliable evidence before us that Sharron Kay knew Chris well or at all. We consider, on balance that the reason Sharron Kay asked the question, framed as it was, was because she wanted to openly refer to the fact that the claimant's partner was gay. That in our judgment was less favourable treatment precisely because it subjected the claimant to a detriment. He did not know that Irene Crothers knew that he was gay. He legitimately did not wish his sexuality to be revealed. He felt uncomfortable when the question was asked.
Further, we consider that this question, in the relevant context constituted harassment. For the reasons set out above we consider that the question asked was on grounds of sexual orientation. Further, the conduct was unwanted: the claimant did not want his sexuality openly referred to in front of other work colleagues. He was, at this stage, unaware that Irene Crothers knew about his sexuality. Further, the question created a humiliating, degrading and offensive environment for the claimant, albeit for a relatively short period of time over dinner. The claimant felt uncomfortable when he was asked the question. Alison Bradbury picked up on this. Having regard to the context, and the claimant's understanding of what his colleagues knew about his sexuality we consider that the claimant's perception and feelings about this event were reasonable. On this occasion we do not consider that he was being overly sensitive."
- The reasoning with respect to each of these complaints is essentially the same. First, as far as direct discrimination is concerned, the Tribunal concluded that in each case Sharron Kay wanted to refer to the fact that the claimant was gay; necessarily the comment would not have been made if the claimant had not been gay. This created a detriment because the claimant did not want the information to be divulged.
- As to harassment, in each case the Tribunal found that the conduct was unwanted and caused offence. The Tribunal also concluded that the information given in the telephone conversation caused a humiliating environment when the claimant later learnt of it; and that the comment at dinner which the claimant found uncomfortable created a "humiliating, degrading and offensive" environment.
- It is in my view crucial to note that the Tribunal did not find with respect to either of these incidents that Sharron Kay's purpose was to harass or undermine the claimant. Indeed, she would have had no reason to suppose that the first conversation would ever get to the ears of the claimant at all. Nor were her conversations of a kind which were intrinsically or obviously discriminatory or likely to constitute harassment: they only became so because of the claimant's response to them. It is true that the Tribunal found that these were the first two incidents in what deteriorated into a tense relationship where the Tribunal found that Ms Kay did not treat the claimant's sexuality as a matter deserving of respect. But with respect to these two incidents which occurred at the very beginning of the relationship (indeed the first before the claimant began work at Coventry) the conclusions of the Tribunal are inconsistent with a finding of hostile intent.
The hearing before the EAT.
- The principal complaint before the EAT with respect to each of these two incidents was that the Tribunal did not at any stage in its lengthy judgment mention, or apparently consider to be relevant two essential facts: first, that the claimant had "come out" in Lytham; second, that Sharron Kay knew this.
- The employers claimed that each of these were potentially highly relevant facts, central to any analysis of these two incidents and to the findings of direct discrimination and harassment. The fact that the claimant had chosen to make his sexual orientation public was inconsistent, it was alleged, with his contention that the disclosure in Coventry was to his detriment; and even if he was irritated at the fact that he was not controlling the way in which that information had become public, the fact that many people already knew would be relevant to the question whether there was harassment or not.
- The EAT (Mr Justice Langstaff presiding) correctly recognised that in general a challenge to the reasoning of the Tribunal, particularly where there is as here a conscientious and detailed analysis of all the facts, is difficult to sustain. A tribunal is not obliged to refer to each and every matter in dispute before it but only such matters as are necessary to tell the parties why they have won or lost: Meek v City of Birmingham District Council  IRLR 250. However, the EAT held that it was necessary for a tribunal to analyse any issue of central significance which goes to the heart of its conclusions, whilst recognising that a finding that a tribunal had ignored a central fact was not one which the EAT would reach lightly.
- The EAT concluded that each of these facts was potentially of real significance in the Tribunal's analysis. The EAT held that whereas a tribunal could readily find that it was an act of discrimination to reveal someone's sexual orientation when it is known that he does not want it revealed, it is far harder to say that this is so when it is believed that he has no objection to his status being revealed. The EAT considered that the relevant facts were plainly relevant to the question whether the claimant could have a justified sense of grievance sufficient to constitute a detriment. Similarly they bore upon the finding of harassment because they were material to the question whether the disclosures could be said to create a humiliating environment.
- The EAT also commented, with respect to the conversation with Ms Crothers, that the choice of comparator was inappropriate. The Tribunal had said that Ms Kay would have treated a heterosexual man differently and would have said to Ms Crothers "he's married, he's attached" without revealing his sexuality. But the former does reveal it; and in any event the situations are simply not comparable. The purpose of revealing sexual orientation is to indicate to Ms Crothers a fundamental difficulty in pursuing any sexual relationship. The alternative formulations identified by the Tribunal fail to send that message.
- For these various reasons the EAT upheld the appeal and concluded, as in my judgment they were bound to do, that it could not be said that the Tribunal's findings on these two matters were clearly correct such that any error by the Tribunal had been immaterial. That submission was pursued before us, but I would reject it essentially for the reasons given by the EAT. The EAT did not, however, conclude that it would be impossible for any tribunal, properly having regard to all the material facts, to find that there was direct discrimination or harassment with respect to either of these two incidents. However, the judgment indicates that the EAT considered that it would be an unlikely conclusion in the circumstances.
The arguments on appeal.
- The claimant seeks to restore the decision of the Employment Tribunal. As a preliminary ground he contends that the EAT reached its decision on a false premise. It assumed that Ms Kay knew that the claimant had been open about his sexuality in Lytham whereas that was not the case. Mr Cavanagh QC, counsel for the Land Registry, submitted that it was indeed the Land Registry's case that she had given evidence to that effect, but he had to concede that the Employment Judge's notes do not record any such evidence being given. He does, however, point out that there was evidence from Ms Kay to the effect that she believed that the claimant had revealed his partner's name during a lunchtime conversation some days before the dinner conversation which is the subject of the second incident, yet no finding was made about that potentially significant fact. However, that matter was not pursued before the EAT.
- In my view, this court ought to act on the assumption that although the claimant did come out in Lytham, Ms Kay did not know that when she had the conversation with Ms Crothers. Equally, however, she did not know that his sexual orientation was a secret or that he was unwilling to have it revealed. That is the basis on which I shall approach this appeal.
- In the argument before us particular emphasis has been given to the claimant's right to respect for his private life under Article 8. Ms Drew emphasised that the Tribunal had rightly drawn attention to the fact that sexuality was a private matter, and that the claimant had wanted to control the way in which others learnt about his sexuality in his new workplace. He had the right to disclose his sexuality at a time and in a manner of his own choosing. It was not for others to make comments on his private life and to frustrate that wish.
- Ms Drew contended that the Sexual Orientation Regulations should be read consistently with Article 8. In this case there was disclosure of private information without consent, because the claimant did not want Ms Kay to reveal his sexual orientation to Ms Crothers. That necessarily involved a breach of Article 8 which must in turn be sufficient to constitute a detriment for the purposes of direct discrimination, and would suffice to constitute an adverse environment of a kind protected by the harassment provision. Privacy was invaded notwithstanding that the claimant had chosen to reveal his sexual orientation at Lytham. That fact was immaterial to the resolution of his case. Its only possible relevance was if Ms Kay knew about it, but she did not.
- In any event, Ms Drew submitted that the Tribunal's conclusions were justified quite independently of the Article 8 point. The Tribunal's conclusion that the treatment was because of the claimant's sexual orientation was not disputed and in any event it was a finding of fact plainly open to the Tribunal on the evidence. Even if the comparator had not been appropriately chosen with respect to the first incident, the Tribunal had focused on the reason why Ms Kay had acted as she had and concluded that it was at least in part because of the claimant's sexual orientation. That was a conclusion open to the Tribunal.
- The Tribunal was well aware that the claimant had come out in Lytham; it was unfair to assume that the failure in terms to mention that fact demonstrated that it had not had it in mind. The Tribunal was entitled to conclude that this fact did not undermine the claimant's case that he wished to adopt an incremental approach to revealing his sexual orientation. The findings of the Tribunal were made with conspicuous care. The conclusion that the claimant had been upset by these two incidents was a finding of fact open to the Tribunal and they properly led to the further conclusion that there had been a detriment and that the effect was to create a humiliating environment. The concept of detriment was a broad one, and the claimant's own perception of the treatment is highly material when determining that question. There was no legal misdirection by the Tribunal and therefore the decision should be upheld.
- Mr Cavanagh submits that the EAT was plainly right and he relies upon its analysis. He contends that the EAT's conclusions stand even if Ms Kay was not aware that the claimant had come out in Lytham. Given that neither incident self evidently gave rise to unlawful discrimination or harassment, it was essential for the Tribunal to have regard to all the relevant circumstances. A crucial consideration was the fact that the claimant had made his sexual orientation widely known to everyone in Lytham without requiring them to respect his confidence. As the EAT held, it was relevant to the question whether he had suffered a detriment or been harassed.
- There is certain common ground between the parties. It is accepted that the fact that the claimant had come out does not mean that remarks or references to his sexuality thereafter cannot constitute discrimination. Clearly they can, an obvious example being where they are vituperative or offensive. Everything depends upon the particular circumstances. So, for example, it will generally be relevant to know to whom the remark was made, in what terms and for what purpose.
- In my view, it is important to keep separate the privacy issue and the question of discrimination. This is not an Article 8 case. Although initially a claim had been made with respect to that Article, it was not pursued and indeed it was not expressly referred in the analysis of the Employment Tribunal (although it was raised in argument) or the EAT. The fact that the law must be interpreted consistently with the rights found in the Human Rights Convention does not mean that Convention rights must be actively promoted whenever a statute falls to be construed. Discrimination law cannot be used as a surrogate to enforce rights of privacy. If Article 8 is being relied upon to support the proposition that the disclosure of someone's sexual orientation against his or her wishes may constitute a detriment within the meaning of discrimination law and could in an appropriate case constitute humiliating treatment, then I have no quarrel with it. But one hardly needs to rely on Article 8 to make good the point. Like the courts below, I do not find the Article 8 jurisprudence of any assistance in this appeal.
- In my judgment, the fact that the claimant had "come out" in Lytham is a highly significant factor when assessing whether there has been discrimination. This is so whether Sharron Kay knew that this was the case or not. The point can be tested in this way. At any time any one of the three hundred or more employees at Lytham could, in conversation with a colleague at Coventry, have revealed perfectly innocently the fact that the claimant was gay. They would have been justified in assuming that the claimant would have no objection to this. It is not suggested that he revealed his sexual orientation in Lytham in circumstances where those in receipt of that information were required or even requested to keep it a secret. If Irene Crothers had been informed by a Lytham employee that the claimant was gay, it would in my view be bizarre if that employee could, by the mere innocent disclosure of that information, be liable for either direct discrimination or harassment. The disclosure would still in fact have been unwanted by the claimant, and no doubt the claimant would have been equally upset by the fact that he was deprived of the opportunity to divulge this information in his own way and in his own time. But it would make a mockery of discrimination law to impose liability in these circumstances. A defendant would be liable for discrimination for doing something which the claimant had reasonably led him or her to believe would not cause the claimant concern.
- The implications of a finding of discrimination in these circumstances would be far reaching. Similar concepts of direct discrimination and harassment are found in other discrimination legislation, relating to such areas as sex, religion, race and disability. An individual may choose to make generally known in the workplace certain aspects of his or her private life, such as the fact that he or she has contracted some debilitating illness, or is pregnant, or has become a Christian. In my judgment if that information is discussed in the course of conversation, even in idle gossip, provided at least there was no ill intent, that would not make the disclosure of that information an act of disability, sex or religious discrimination, as the case may be. That is so even if the victim is upset at the thought that he or she will be the subject of such idle conversation. By putting these facts into the public domain, the claimant takes the risk that he or she may become the focus of conversation and gossip.
Conclusions on the Crothers' conversation.
- In my judgment, therefore, it would simply not be open to a tribunal to find with respect to the first incident that there is either direct discrimination or harassment. As to the former, in my view there can be no detriment because having made his sexual orientation generally public, any grievance the claimant has about the information being disseminated to others is unreasonable and unjustified. Furthermore, even if in fact the disclosure was unwanted, and the claimant was upset by it, the effect cannot amount to a violation of dignity, nor can it properly be described as creating an intimidating, hostile, degrading, humiliating or offensive environment. Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. The claimant was no doubt upset that he could not release the information in his own way, but that is far from attracting the epithets required to constitute harassment. In my view, to describe this incident as the Tribunal did as subjecting the claimant to a "humiliating environment" when he heard of it some months later is a distortion of language which brings discrimination law into disrepute.
- It follows, in my view, that once it had been determined that Ms Kay had no ill purpose in revealing this information to Ms Crothers, if the Tribunal had taken into account the fact that the claimant had revealed his sexual orientation in Lytham, it could not properly have concluded that there was either direct discrimination or harassment. I appreciate that the EAT was not prepared to go that far, and the respondent has not asked us to make that finding, but in my judgment it is the only proper conclusion in the circumstances.
- I should add that like the EAT, I think that the finding that there was in any event less favourable treatment on grounds of sexual orientation is highly problematic. As to the proscribed ground, Mr Cavanagh accepted that since the comments were about the claimant's sexual orientation, they were on grounds of his sexual orientation. But that does not follow. Indeed, the Tribunal itself appears to have recognised that the disclosure might have been for an entirely innocent reason, if for example it had been solely to discourage Ms Crothers from developing any interest in the claimant. The Tribunal's conclusion that there was discrimination rested on the finding that Ms Kay chose to make this information available when there was no need to do so. But this in turn was a finding made on the false premise that Ms Kay could have conveyed the same message without revealing the claimant's sexual orientation. In fact no other formulation, such as "he is in a relationship" would have made the same point. In any event, I think it is open to question whether the fact that Sharron Kay was at the same time happy to gossip about the claimant's sexual orientation, assuming that gossiping is a fair description of what she did, necessarily renders her comments to Ms Crothers treatment by reason of sexual orientation. But given that the point was not argued before us, I do not decide the appeal on that basis.
- Even if the comment did constitute treatment on the grounds of sexual orientation, in my view the Tribunal's conclusion that the claimant was subject to less favourable treatment was flawed. It identified the hypothetical comparator as a heterosexual who was not interested in Ms Crothers. The Tribunal observed that Ms Kay would have not have revealed his sexual orientation to Ms Crothers but would have said something like "he's married." That does of course implicitly reveal his sexual orientation. In any event it is a curious finding that she would not have revealed the sexual orientation of a heterosexual man, given that there would be no reason at all to suppose that the heterosexual man would take umbrage at any such disclosure. Of course, I recognise the obvious point, properly referred to by the Tribunal, that it is too simplistic simply to ask whether a heterosexual man would have been treated in the same way. A gay man might understandably be fearful of his sexual orientation being made public where a heterosexual man may not. But where the gay man has already made his status public such that there is no reason to suppose that he will object, like the EAT I find it very difficult to see how revealing his sexual orientation can be held to be less favourable treatment.
The dinner incident.
- The dinner incident in some respects can be similarly analysed. The claimant's principal complaint was that attention was drawn to the fact that he was gay. There was one person at the dinner party who, as far as he knew, was not aware of that fact and he was made to feel uncomfortable by the reference. But again, I do not think that he was justified in objecting to Ms Kay communicating this information, even in his presence. It was not a detriment and, in my judgment, could not properly be so described. Nor in my view is it enough to say that he was made to feel uncomfortable. Indeed, the Tribunal's finding was that for a short period over dinner the claimant felt uncomfortable. Again, given that it was not the purpose of Ms Kay to humiliate or embarrass him, I do not think that a tribunal is entitled to equate an uncomfortable reaction to humiliation. I accept that there may be circumstances where revealing a gay person's identity in this way in his presence could be so described, but not in these circumstances.
- As the EAT pointed out, there is also a problem in the way in which the Tribunal identified the comparator in this example too. They drew a comparison with a heterosexual male who was having an affair. It was said that the claimant would have been more sensitive to that person. But the relevant comparator would be the male whose affair was widely known because he had chosen to inform people. It is certainly not obvious that Ms Kay would have avoided asking a similar question in those circumstances.
- In my judgment the appeal fails. I agree with the EAT that the only reasonable inference from the Tribunal's decision is that the Tribunal failed to have regard to a crucial fact, namely that the claimant had chosen to reveal his sexual orientation at Lytham. In my view, in the light of that fact, and given that the Tribunal did not find that with respect to either of the first two incidents there was any intention of harassing the claimant, it would not be open to a tribunal to conclude that either of these two incidents constituted either direct discrimination or harassment. I would therefore remit the case to another tribunal to consider the other four complaints only.
- I would add this. Ms Monaghan made powerful submissions to us why it is important that gay persons should be able to reveal their sexual orientation on a confidential basis, and that to break that confidence would be likely to involve a breach of Article 8 and might, depending on the circumstances, also involve sexual orientation discrimination. She referred us in particular to the ACAS guide on sexual orientation in the workplace which states in terms that "outing" someone might have those consequences. Nothing in this judgment is intended to minimise those concerns or cast doubt on the accuracy of those statements. The circumstances here, however, where someone has chosen widely to reveal his sexual orientation, puts the case into a different category.
Lord Justice Patten:
- I agree.
Lord Justice Mummery:
- I also agree.
Published: 11/07/2011 08:17