The application was granted partly because it was arguable that the EAT had misunderstood the evidence and also because

"arguable issues arise as to whether the ET took the correct approach to detriment and, in the context of harassment, of the effect on the effect of the acts of alleged harassment on the victim".

It was therefore appropriate for the Court of Appeal to consider the ET's approach.

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Case No: A2/2010/1066

Neutral Citation Number: [2010] EWCA Civ 1176

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Friday, 7th October 2010

Before:

LADY JUSTICE SMITH

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Between:

HM LAND REGISTRY (Respondent)

- and -

GRANT (Appellant)

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(DAR Transcript of WordWave International Limited
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Ms Sandhya Drew and Ms Jane Russell (instructed by Russell Jones and Walker) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented

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JUDGMENT (As Approved)

Crown Copyright ©

**Lady Justice Smith:
**1. This is a renewed application for permission to appeal a decision of the Employment Appeal Tribunal (EAT). The EAT allowed the Land Registry's appeal against the decision of the Employment Tribunal (ET) that Mr Grant had been discriminated against on the ground of his sexual orientation and had been harassed, in both cases by his line manager at the Land Registry in Coventry.

1. The main reason why the EAT allowed the appeal was that it took the view that the ET had not properly taken account of what the EAT regarded as a very important piece of evidence, namely that Mr Grant had while working at the Land Registry's Lytham branch made it plain to colleagues that he was gay. The ET was also satisfied that Mr Grant's line manager at Coventry, Sharron Kay, knew about the situation that had prevailed for some months in Lytham and therefore believed that Mr Grant was quite relaxed and open about his sexual orientation.

1. The EAT appears to have been satisfied that that was the evidence before the tribunal and that the tribunal had failed to give proper consideration to that important evidence. However, on receipt of the EAT's draft judgment, counsel for Mr Grant wrote to the EAT suggesting that the evidence before the ET had not been as the EAT had described it. No change was made to the EAT judgment in the light of that submission.

1. Counsel now seeks to submit that the EAT misunderstood the state of the evidence given by Sharron Kay. She had never said that she had known that Mr Grant had revealed his sexual orientation to colleagues at Lytham and she had never claimed to have any reasonable belief that he was relaxed about disclosure of his orientation to others. Counsel accepts, somewhat ruefully, that, on receipt of the notice of appeal to the EAT, it had not been appreciated how much emphasis was going to be put on these aspects of the case and counsel had not called for the Chairman's notes of evidence of Ms Kay's cross-examination.

1. It has been demonstrated to me today that Sharron Kay's witness statement, which I understand was taken as her evidence in chief, does not claim to have had any knowledge or understanding that Mr Grant had made his homosexuality generally known at Lytham; nor does she claim in advance of his arrival to have had any belief that he was happy that his sexual orientation should be generally known.

1. Thus it does appear to me arguable that the EAT may have misunderstood the evidence about this issue and it did not have before it, for reasons that I have explained, the notes of evidence which would have enabled the situation to be clarified. In consequence I have come to the conclusion that I should allow this case to go forward to a hearing.

1. However, there is another reason why it may be appropriate for the full court to consider this matter. These allegations of discrimination on grounds of sexual orientation and harassment are very much at the lower end of the scale of the kind of allegations that one comes across in cases of this kind. It seems to me that arguable issues arise as to whether the ET took the correct approach to detriment and, in the context of harassment, of the effect on the effect of the acts of alleged harassment on the victim. It seems to me not inappropriate that the Court of Appeal should give consideration to the ET's approach to those issues.

1. So for those two reasons I have decided to grant permission.

1. The appeal is to be listed before a court of three which may comprise one High Court judge in addition to two Lords Justice. At least one member of the court must have experience of discrimination cases in the field of employment.

Order: Application granted