Case law on sexual orientation discrimination

(unreported, [2011] EWCA Civ 769 1 July 2011, CA)
Issue: Harassment

A gay employee worked in a Land Registry office where he was ‘out’. He moved to another office where he decided to delay revealing his homosexuality. His new manager mentioned his sexuality to another colleague, as well as making references to it at a dinner party. The employee brought sexual orientation and harassment claims.

An employment tribunal held that the manager’s decision to reveal the employee’s sexuality was less favourable treatment on the grounds of sexuality. It also stated that it was legitimate for the employee to have control over how, and when, he revealed his homosexuality at his workplace.

The Court of Appeal ruled, upholding the Employment Appeal Tribunal decision, that the employment tribunal had not taken into account that the employee had been ‘out’ at another office and many employees in the Land Registry were aware that he was gay. It also found that his manager had no ‘ill purpose’ in revealing his sexuality and so there could be not direct discrimination or harassment.

Implications for employers

• Employers should always proactively enforce their equal opportunities policies and act to ensure that conduct between employees does not amount to discrimination or harassment.
• Employers should discipline the perpetrators of discriminatory or harassing conduct where appropriate.
• If employees disclose their sexuality to their employer in confidence, then they have the right to keep their sexuality private and ’outing’ a gay employee may well give rise to discrimination.
• The fact that a gay employee has already come 'out’ is taken into account in assessing if subsequent conduct by colleagues amounts to discrimination or harassment.
• However, it is very important for employers to note that the fact that a gay employee has come out does not mean subsequent references to their sexuality will not amount to discrimination or harassment.
• The court will always consider ’to whom a remark is made, in what terms and for what purpose.’ How the employee sees the treatment they have received, remains a key consideration in deciding if that conduct amounts to discrimination or harassment.
• Employers will have discriminated as well if they do not act to protect the employee.