ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
The Hon Mr Justice Langstaff sitting with two lay members
UKEAT/0232/09/DA, BAILII:  UKEAT 0232_09_1504
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE PATTEN
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|HM LAND REGISTRY
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|THE EQUALITY AND HUMAN RIGHTS COMMISSION
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
Crown Copyright ©
Lord Justice Elias :
The relevant law.
"(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."
"(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."
"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."
The findings of discrimination.
(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.
The significance of the first two incidents.
The conversation with Ms Crothers.
"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 Crothers' conversation: the Tribunal's findings.
"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 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 hearing before the EAT.
The arguments on appeal.
Conclusions on the Crothers' conversation.
The dinner incident.
Lord Justice Patten:
Lord Justice Mummery: