An interesting discrimination law judgment came the Court of Appeal on Friday in Grant v H.M Land Registry.
Chris Grant worked for the Land Registry, initially at Lytham, where he was “out”; but when he got promoted to a job in Coventry, he decided to keep quiet about at first about being gay, intending perhaps to come out when he felt comfortable in doing so. But his new line manager already knew he was gay, and as Mr Justice Elias explains (para. 21 of the judgment):
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.”
This is, pretty obviously, the sort of conversation that happens every day in offices everywhere. The legal question was whether, in revealing Mr. Grant’s sexuality, his boss discriminated against him and/or harassed him on grounds of sexual orientation, contrary to regulations 3 and 5 of the Employment Equality (Sexual Orientation) Regulation 2003, which were in force at the time, the facts having occurred before sections 12, 13 and 26 of the Equality Act 2010 came into force last year. The same question arose in relation to a second incident
.. 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?”
Initially an Employment Tribunal in Birmingham held that these were both acts of discrimination and harassment, but the Land Registry won an appeal to the Employment Appeal Tribunal on the basis that the original tribunal had failed to take into account the fact that Mr. Grant had been open about his sexuality in Lytham. The Court of Appeal has upheld the EAT’s approach. In relation to the phone call, Elias J says (paras. 45-6)
In my judgment, the fact that the claimant had “come out” in Lytham is a highly significant factor … 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 … 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.
and in relation to the dinner conversation (para. 51):
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.
I think the Court of Appeal’s approach must be right. I’m not sure a breach of privacy necessarily amounts to sexual orientation discrimination – and the concern that the two concepts must be kept separate comes across clearly in Elias J’s judgment (see paragraph 44). But in any event, it seems to me wrong for someone to be able in effect to convert his (in itself perfectly reasonable) wish to control how and when he reveals personal information about which he has in another context been open into a legally enforceable right against others.
Had the claimant won on this principle, I think it would have had an incredibly “chilling effect”, to use a phrase often heard in another context, and not only on office gossip. Wouldn’t you always have needed prior permission to mention a colleague’s sexuality to a third person, or to ask after a colleague’s partner in the presence of others – just in case what you said might hurt them?
This type of case is quite tricky to evaluate because it often looks quite different to the tribunal which makes the decision. Cases like this can be won or lost because the attitude of the employer comes across in evidence but the tribunal has to go back and reason the case backwards to shore up its findings. I agree that the allegations in this case are innocuous on their face but discrimination claims cannot be decided on paper. A more rounded approach is required.
I agree with the Employment Appeal Tribunal that the case had to be returned to the tribunal to be reheard but I think that the Court of Appeal went too far in saying that the circumstances of the case could never amount to discrimination, regardless of the context. It is impossible to anticipate every possible context that might arise.
I’ve often heard it said that as a gay, one of the best sources of potential dates is through word-of-mouth in this way, “Oh, Dan’s gay? Well, I know this other guy he’d really get on with: we should introduce them.” It would be really sad if this circuit were cut off for fear of it biting the employer in an employment tribunal later. And what would the gays in my office talk about if not gossiping about who is and isn’t?
I feel it’s a bit sad, though I know this is the nature of the appeal, that so much discussion has been made about the two ‘outing’ incidents involved when they’re peripheral to the more substantive claims of direct discrimination. If it had turned out that the “How is he?” comment had been made snidely or hostilely, this could well be evidence to support a claim that the later acts were sexuality-motivated, regardless of whether his discomfort at the time was reasonable or whether the two outing incidents were harassment per se.
While I’m glad, as you are, that the Court of Appeal finds it OK to repeat information you might reasonably suspect is already in the public domain, and it’s entirely reasonable of them and EAT to say that the judgements of the other claims are consequently unsafe, I’d be surprised if it actually changed their judgement about claims 5 or 6.
Surely the whole point of equality law is that there should be no stigma attached to being gay, hence no detriment from being outted per se, albeit accidentally. As the test for discrimination is how another person not of the orientation of the appellant would have been treated in similar circumstances, should we look at a notional person who is a) straight and married, or b) married but having an affair, but without anyone at work knowing of that fact?
Depending on which scenario is the better comparator, the two quotes from the case might have been rendered as: “Don’t go fluttering your eyelashses at him, he’s married” / “”Don’t go fluttering your eyelashses at him, he’s already having an affair” and ” How’s your wife[/partner], X? How is she?” / “How’s your mistress, X? How is she?”
Does infidelity carry greater social stigma than being gay? (cf the case of the footballer who cannot be named here!)
I really fail to see how either of those two remarks would amount to more favourable treatment in the case of X, as married man in scenario one, but in scenario 2, the law would offer no specific protection to X on being outed as a philanderer, but seemingly was being asked to provide greater protection to a gay person.
I think the Appeal Court reached a good decision
Thinking about this a little more, another possible comparator comes to mind. Imagine that Ms Crothers (the friend on the phone) were instead a single gay man, and that Mr Grant were instead a single straight man. Now, in response to a comment like, “The new chap seems really nice,” I can readily imagine Ms Kay responding, “It’s no use fluttering your eyelashes at him, he’s straight.” She (hypothetically) reveals the comparator’s sexuality in just the same way, so it can’t be discrimination. It’s a much simpler and more direct comparison, without bringing philanderers into the picture.
But I still think the sorta-kinda outing incident is a bit of a red herring, distracting from the meat of the case.
[…] Carl Gardner over at Head of legal considers: Outing, idle gossip and sexuality discrimination […]
@James Medhurst #1:
“I think that the Court of Appeal went too far in saying that the circumstances of the case could never amount to discrimination, regardless of the context.”
But the Court of Appeal didn’t. The decision that “it would not be open to a tribunal to conclude that either of these two incidents constituted either direct discrimination or harassment” was entirely dependent upon the context; namely the self-outing at Lytham and the finding by the Tribunal itself that there was no intention to harass.
The context includes not only the fact of the self-outing but also the nature of it as well as the nature of the act complained of. The Court of Appeal did not hear evidence about that but the Tribunal did and the Tribunal is sovereign when it comes to making findings of fact.
I think your point about not deciding discrimination cases on paper is a strong one, James – it’s all too easy to criticise tribunals. Odd, though, surely, if they really didn’t take into account his being out previously.
I would be amazed if the tribunal did not take the self-outing into account. When the appeal courts say that it did not, all they mean (presumably) is that the tribunal did not mention it expressly in the judgment. Had the tribunal made it clear that it had been weighed in the balance but it still felt that there had been harassment, the only basis for granting the appeal would have been perversity. Maybe this is why the Court of Appeal wanted to find a proposition of law.
@James
“The context includes not only the fact of the self-outing but also the nature of it as well as the nature of the act complained of.”
True; but can we step back?
Grant self-outed at Lytham, and there is no finding by the Tribunal that that was anything other than entirely his choice. He, one can legitimately infer, had no problem with any of the 300 staff at Lytham knowing of his sexuality.
Given that he knew that staff do transfer between HMLR offices, and he could hardly have been unaware that staff do talk to staff at other offices, it would be perverse for the Tribunal to find that while he wanted to control the pace at which he outed himself at Coventry he had any legitimate expectation of keeping it secret at Coventry. As it was put in para 47 in relation to detriment/discrimination:
“having made his sexual orientation generally public, any grievance the claimant has about the information being disseminated to others is unreasonable and unjustified”
As to harassment; having made that finding, and the Tribunal having not found any intention to harass, it is very difficult to see in what circumstances harassment would have been open to the Tribunal. Do you have any thoughts on this?
I think the Appeal Court is wrong in one issue. Intention to harass should not be able to preclude harassment.
For a victim of harassment it often is irrelevant if the harassment is intended or not. In order to stop harassment to stop (irrelevant of the category on which the harassment is based), harassment must be stopped were it occurs without handing the Card Blanche of unwitting behaviour. Certainly, different measures are necessary depending if the harassment was intentional or not. In one case mere education is sufficient, but necessary. In the other case, some form of disciplinary action is necessary.
Unfortunately, in UK law this principle is not consistently applied. While i.e. the amended Race Relation Act, public bodies have the specific duty to enhance the understanding between different groups (which would include the dealing and future prevention of unintentional racism), it is not applied to every place of employment.
Unfortunately, even the Employment Tribunals do not understand these issues or are bound by EAT and Appeals Court Cases to disregard discrimination when it is systemic, institutional or unintentional. Unfortunately nobody has learn from the Macpherson Report.
@Robin Levett
I think the problem here is that everyone, including, the Court of Appeal, has got bogged down with what people knew. This was part of the reasoning of the Tribunal but it appears, from the extracts of its judgment, that it was also concerned with the pointed manner in which the revelations were made, which it thought was insensitive.
By way of comparison, let me give a race discrimination example. Suppose that a company has a black male employee who happens to be in a mixed-race marriage. If the question were asked, “How is your white wife?”, I think that most people would agree that the use of the word “white” indicates more than a note of disapproval and so is inappropriate in the workplace. A race discrimination claim could well succeed and I doubt that a comparator would be needed.
It seems to me that the Tribunal considered that the question “How is your partner? How is he?” had been asked in the same pointed way, albeit that it was not intended to offend. Note that this is very different from asking “How is your boyfriend?” which conveys the same information but more efficiently and, consequently, with less emphasis (I shall try to avoid getting bogged down in Grice here). Also note that, in neither case, does it particularly matter whether the information is private, although privacy increases the impact.
Of course, it could have been perfectly innocent. A lot will depend on the tone of the comments, the body language used and what was said before and afterwards. However, I am in the happy position where I do not need to argue that the comments are necessarily discriminatory regardless of context. My point is that, depending on the context, they might be, and it is open to a tribunal so to find.
@James
I would entirely agree that reference to “white wife”, in context, would be completely unacceptable; it is difficult to see any circumstances in which that would be anything other than an expression of disapproval and indication of the speaker having “issues” with interracial marriage. But that isn’t this case. The expression of disapproval is independent of whether the audience knows that the employee is in a mixed-race relationship, and is what gives rise to the grievance and hence detriment.
I find it difficult however to agree that a remark that was not intended to offend, or to harass – that was not intended to “violat[e] [Grant]’s dignity; or…creat[e] an intimidating, hostile, degrading, humiliating or an offensive environment” could be “pointed” in any relevant sense.
More pertinently perhaps; the emphasis on knowedge is inevitable because the detriment that the Tribunal found was that Grant didn’t want his sexuality to be revealed, and his grievance was that the phrasing of the question revealed it. Whether that was a legitimate grievance is an issue to which the self-outing at Lytham is clearly relevant; having put the information into the public domain within his workplace, he no longer had any legitimate expection of control over transmission of the information.
I’m afraid this whole thing is ridiculous.
To an ordinary person it has nothing to do with harassment or equality, but privacy invasion.
How that translates into law is probably where the whole things turns into rubbish and ties Tribunals and suchlike in knots.
Moving from Lytham to Coventry is not like moving within the same town.
The process of telling people about your private life, in particular such an intimate and personal part of your private life, belongs to the individual, not a second or third party, and certainly not to a work colleague or employer.
If the law does not recognise these basic, ordinary facts of real life as it is lived, then the law is an ass (you’ve used a cliché, so I feel like I can use one too, three four :-P)
Good luck with the knot-untying, you’ll need it.
Oh, and one other thing that the law either recognises or is an ass about:
It’s about SAFETY.
And only the individual in question can judge that.
Safe in Lytham’s office is not necessary safe in Coventry’s.
A person has every right to ‘go back in’ where there may be danger and it is not for a second or third party to remove that right or make that judgement on the individual’s behalf.
On the other hand, if colleagues had shown some forethought or common sense none of this grievance or legal stuff would be needed.
As usual, it’s thoughtless people (and, yes, innocent mistakes) who make life difficult for these incredibly sensitive matters.
@Anonymous:
“To an ordinary person it has nothing to do with harassment or equality, but privacy invasion.”
Not to this ordinary person. I am struggling with the concept of a privacy right in a publicly-known fact. Perhaps you can help me?
To give an example of circumstances where someone, having come out at one workplace, does not wish to (or not immediately) at another, suppose the chap is bisexual and fears that being identified as gay will reduce his chances with the women at his new workplace? Or even, that after a period of exclusively gay experience, he has decided he is in fact fundamentally heterosexual (it can happen that way, though of course it is more common for people who have thought themselves heterosexual to discover they are fundamentally homosexual). In these circumstances the chap might be rightly aggrieved to find part of his life he has decided to keep private brought into the open without his consent. That said, I think the courts made the right decision because once you make part of your life public, you should not be able to take legal action against someone for innocently (not maliciously) disclosing it. Another parallel to add to those above: if someone states that you are a married man when in fact you are divorced, this could be embarassing: if they know about the marriage, but not about the divorce, it is an innocent statement of fact: if they know you are divorced but state you are married, this is malicious.
@oviraptor:
“In these circumstances the chap might be rightly aggrieved to find part of his life he has decided to keep private brought into the open without his consent.”
But: you are talking about someone who has come out. He has decided to put his sexual orientation into the public domain; not to keep it private. He brought it into the open; self-evidently, then it has been brought into the open *with* his consent.