Grant v HM Land Registry

Factual and Procedural Background

The Appellant, a male homosexual, began working for Company A at The City office in April 2003 and publicly disclosed his sexual orientation to colleagues there. In October 2006, he was promoted and transferred to another office in The City, where he did not disclose his sexual orientation, intending to do so at his discretion. He alleged that during his time at the new office, he was subjected to sexual orientation discrimination and harassment by his line manager, Defendant.

An Employment Tribunal found six allegations of direct sexual orientation discrimination proved, five of which also amounted to harassment. Other allegations were dismissed due to unreliable evidence or perceived oversensitivity. The employers appealed to the Employment Appeal Tribunal (EAT), arguing the Employment Tribunal failed to consider central facts, notably that the Appellant had come out at the previous office and that the line manager was aware of this. The EAT upheld the appeal, remitted the case for reconsideration of the six discrimination and five harassment allegations, and the Appellant now appeals seeking restoration of the original findings.

Counsel for the parties and an intervening Equality and Human Rights Commission made submissions before the court.

Legal Issues Presented

1. Whether the Employment Tribunal erred in failing to consider the Appellant's prior public disclosure of his sexual orientation at the previous office and the line manager’s knowledge thereof in assessing claims of direct discrimination and harassment.
2. Whether the conduct of the line manager constituted direct sexual orientation discrimination and/or harassment under the Employment Equality (Sexual Orientation) Regulations 2003.
3. The appropriate comparator for assessing less favourable treatment in the context of sexual orientation discrimination.
4. The relevance and application of the Appellant’s right to privacy under Article 8 of the European Convention on Human Rights in discrimination claims.

Arguments of the Parties

Appellant's Arguments

• The Employment Tribunal correctly found that the line manager disclosed the Appellant’s sexual orientation without consent, constituting a breach of privacy and detriment under discrimination law.
• The Sexual Orientation Regulations should be read consistently with Article 8 rights, protecting the Appellant’s control over when and how his sexual orientation is disclosed.
• The prior public disclosure at the previous office was known to the Tribunal and did not undermine the findings; the Appellant was entitled to reveal his sexual orientation incrementally.
• The Tribunal’s findings of less favourable treatment and harassment were open on the evidence and legally sound.

Defendant's Arguments

• The EAT was correct to find that the Employment Tribunal failed to consider two central facts: the Appellant's prior public disclosure and the line manager’s knowledge of this.
• Given the Appellant’s prior public disclosure, it was inconsistent to find detriment or harassment from the line manager’s disclosures in the new office.
• The disclosure in the new office did not cause a detriment or create a humiliating environment as the Appellant had already publicly revealed his sexual orientation.
• The comparator used by the Employment Tribunal was inappropriate, affecting the assessment of less favourable treatment.

Equality and Human Rights Commission's Arguments

• Emphasised the importance of confidentiality for gay persons revealing sexual orientation.
• Noted that "outing" someone without consent can breach Article 8 and constitute discrimination or harassment depending on circumstances.
• Clarified that this case differed due to the Appellant’s voluntary and public disclosure at the previous office.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (on the application of Birmingham City Council) v Equal Opportunities Commission [1989] AC 1155	Objective test for less favourable treatment in discrimination claims.	Cited to emphasize that the treatment must be objectively less favourable, not merely perceived as such by the claimant.
Richmond Pharmacology v Dhaliwal [2009] ICR 724	Assessment of harassment under similar provisions; relevance of intent and effect.	Discussed the relevance of the perpetrator’s intent in assessing the effect of conduct constituting harassment.
Shamoon v Chief Constable of the Ulster Constabulary [2003] UKHL 11	Definition of detriment in employment discrimination law.	Used to clarify that detriment requires a reasonable worker to view the treatment as disadvantageous.
Meek v City of Birmingham District Council [1987] IRLR 250	Requirement for tribunals to address central matters in their reasoning.	Referenced regarding the duty of tribunals to consider all central facts necessary to explain their decision.

Court's Reasoning and Analysis

The court examined the six incidents found by the Employment Tribunal to constitute direct discrimination and harassment, focusing primarily on the first two incidents: the line manager’s disclosure of the Appellant’s sexual orientation to a colleague prior to his employment at the new office, and a question posed at a work dinner referencing the Appellant’s partner.

The court acknowledged that the Employment Tribunal found these acts caused detriment and created a humiliating environment, but emphasized that the Tribunal did not find hostile intent by the line manager in these early incidents.

The Employment Appeal Tribunal (EAT) had held that the Employment Tribunal failed to consider two crucial facts: that the Appellant had publicly disclosed his sexual orientation at the previous office and that the line manager was aware of this. The EAT reasoned that if the line manager believed the Appellant had no objection to disclosure, it was less likely that the conduct constituted discrimination or harassment, as no justifiable grievance or humiliating environment would arise from revealing already public information.

The court agreed with the EAT that the Employment Tribunal’s failure to consider these facts rendered its conclusions unsafe. It further reasoned that the Appellant’s prior public disclosure significantly undermined any claim of detriment or harassment arising from the line manager’s disclosures, as the Appellant had effectively assumed the risk of such information becoming known.

The court distinguished the privacy interest (Article 8) from discrimination law, noting that while privacy rights are important, discrimination law does not serve as a surrogate for enforcing privacy. The court found that the Appellant’s prior public disclosure diminished the privacy claim and that the Tribunal’s reliance on Article 8 was unnecessary and unhelpful.

Regarding the comparator, the court found the Tribunal’s hypothetical comparator flawed, as the alternative formulations suggested by the Tribunal implicitly revealed sexual orientation and were not comparable to the Appellant’s situation.

In conclusion, the court held that the Employment Tribunal’s findings of direct discrimination and harassment on the basis of the first two incidents could not stand once the relevant facts were properly considered.

Holding and Implications

The appeal is DISMISSED.

The court upheld the EAT’s decision to set aside the Employment Tribunal’s findings of direct discrimination and harassment related to the first two incidents involving the line manager’s disclosure of the Appellant’s sexual orientation. The case is remitted for reconsideration of the remaining four allegations only.

The decision clarifies that where an individual has voluntarily and publicly disclosed their sexual orientation in the workplace, subsequent disclosures by others, absent hostile intent or aggravating circumstances, are unlikely to constitute unlawful discrimination or harassment. This delineation prevents discrimination law from being applied in a manner that would impose liability for disclosures reasonably expected by the claimant.

No new legal precedent was established beyond the application of existing principles to the facts of this case.