|At the Tribunal|
|On 29 January 2010|
THE HONOURABLE MR JUSTICE LANGSTAFF
MRS R CHAPMAN
MS P TATLOW
Transcript of Proceedings
|For the Appellant||MISS ANYA PROOPS
Messrs Flint Bishop & Barnett Solicitors
St Michael's Court
St Michael's Lane
|For the Respondent||MRS JANE RUSSELL
Messrs Russell Jones & Walker
50-52 Chancery Lane
SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
HARASSMENT – Conduct
PRACTICE AND PROCEDURE – Appellate Jurisdiction/Reasons/Burns-Barke
An Employment Tribunal accepted that 6 out of 12 complaints of discrimination, and 5 out of 12 of unlawful harassment, were made out. None of the acts complained of, save possibly one, was obviously and intrinsically discriminatory. Each finding relied on the validity of the others. The first and second in the sequence involved accepting that the Claimant had suffered less favourable treatment, to his detriment, where his manager had mentioned to someone who had met the Claimant that he, the Claimant, was gay. In its analysis the Tribunal did not deal at all with a fact which was common ground, and heavily relied on by the employer, namely that the Claimant had himself chosen to make his sexual orientation known when working in a large branch of the employer's undertaking at Lytham, prior to moving to a branch at Coventry, and that the manager concerned knew this. Nor did the Tribunal express any clear view whether it thought that the manager's actions sought to undermine the Claimant at work because of his sexuality rather than being clumsy and unnecessary comment, which though not determinative of the issues raised in a discrimination case was highly relevant. It was held that the Tribunal needed to deal with these matters which were central to the issues, and its overall decision could not stand in the light of its failure to do so. The case was remitted to a fresh tribunal.
THE HONOURABLE MR JUSTICE LANGSTAFF
"Don't go fluttering your eyelashes at him, he's gay"
"How is your partner Chris, how is he?"
"Phil, I am getting increasingly agitated messages from the pay offices and alike regarding your work status. If you have been signed off sick since the beginning of September (the last date for which London or Coventry personnel officers have any sick notes) please lodge them immediately. If you have already sent them to someone please confirm who this was and I can investigate what must be a lack of communication. Regards Sharron"
Conclusions of the Tribunal Regarding These Findings
"32…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 Sharron 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 when 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.
33. 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. "
"…revealing a heterosexual man's sexuality in the work place will not always be directly comparable to revealing a homosexual man's orientation in the work place. For example, in some circles in society the fact that an individual is gay may attract adverse comment or even teasing. Some homosexual men may, therefore, feel more anxious about revealing their sexuality within the workplace than some homosexual men…..We do not consider that the appropriate comparison was between the question asked about the Claimant's male partner, and a question asked of a heterosexual man about his partner. 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."
"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."
"Ultimately, on balance, we prefer the Claimant's evidence on this point. In particular, he gave clear, detailed evidence that Sharron Kay had made this gesture from a slightly lower, seated position. He gave precise evidence about where she was sitting and who was facing her at the time. Sharron Kay, on the other hand, has not categorically denied making such a gesture. She has simply sought to explain it by suggesting it could have been an unintentional mannerism. Although we do not find this an easy issue to decide, on balance we have decided that Sharron Kay did make a "limp wrist" gesture to the Claimant." (Our italics)
"In our judgment Sharron Kay did not like the Claimant and one of the reasons that she did not like the Claimant was connected to his sexuality. She did not treat his sexuality as a private matter to be treated with respect, but something which could be openly referred to (irrespective of the Claimant's preferences regarding that), and joked about…The Claimant has proved sufficient… to shift the burden to the Respondent to prove that there was no discrimination whatsoever in Sharron Kay's uncooperative action regarding the use of fleet cars. We consider that the Respondent has failed to do that. We did not accept on the facts Sharron Kay's explanation as to why she acted as she did regarding the use of fleet cars."
This did not, however, constitute harassment.
"When placed in its proper context, it did question the validity of the Claimant's absence and sickness. Further, we consider that it constituted less favourable treatment on grounds of sexual orientation. We considered carefully the primary facts which we have found."
(This was a reference back to the findings that Sharron Kay had revealed the Claimant's sexual orientation to Irene Crothers and made a limp wrist gesture).
"…We considered whether we should draw an inference from those facts. We decided that we could and should do so. In our Judgment this email reflects…the relationship between Sharron Kay and the Claimant. Sharron Kay did not get on well with the Claimant and did not like him. One factor contributing to that was the Claimant's sexuality. We consider that this one email demonstrated the true relationship between the Claimant and Sharron Kay. We did not find her explanation for the tone of this email (that she was busy (in oral evidence) or because she deliberately altered the tone because she was concerned that head office might read it) to be credible. We consider that Sharron Kay would not have written an email in those terms to somebody of a different sexual orientation to the Claimant.
47. Further, for the same reasons, we consider this email constituted an incident of unlawful harassment. The email created an intimidating and hostile environment for the Claimant: his sickness, out of the blue, was questioned by his line manager in significantly more robust terms than any of their previous exchanges"
"(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."
(2) It is unlawful for an employer, in relation to a person whom he employs at an establishment in Great Brittain, to discriminate against that person….
(d) by dismissing him, or subjecting him to any other detriment.
(3) It is unlawful for an employer, in relation to employment by him at an establishment in Great Brittain, to subject to harassment a person whom he employs or who has applied to him for employment."
"Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval."
At paragraph 7 Lord Nicholls said:-
"In deciding a discrimination claim one of the matters Employment Tribunals have to consider is whether the statutory definition of discrimination has been satisfied. When the claim is based on direct discrimination…in practice Tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the "less favourable treatment" issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the "reason why" issue). Tribunals proceed to consider the "reason why" issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the Tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.
8. No doubt there are cases where it is convenient and helpful to adopt this two-step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined."
"A detriment exist if a reasonable worker would might or might take the view that the [treatment] was in all the circumstances to his detriment"
And that in de Souza v Automobile Association  ICR 514:-
"The…Tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work."
He then added this, at paragraph 35:-
"But once this requirement is satisfied, the only other limitation that could be read into the word is that indicated by Brightman L.J. As he put it in Ministry of Defence v Jeremiah "one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to detriment: Barclays Bank Plc v Kapur (number 2)  IRLR 87. But, contrary to the view that was expressed in Lord Chancellor v Coker  ICR 507…it is not necessary to demonstrate some physical or economic consequence."
"We do not believe that there is a real difficulty here. The proscribed consequences are, of their nature, concerned with the feelings of the putative victim: that is, the victim must have felt, or perceived, [his] dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a "subjective" element; but overall the criterion is objective, because what the Tribunal is required to consider is whether, if the Claimant has experienced those feelings or perceptions, it was reasonable for [him] to do so. Thus if, for example, the Tribunal believes that the Claimant was unreasonably prone to take offence, then even if [he] did genuinely feel [his] dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a Claimant to have felt [his] dignity to have been violated is quintessentially a matter for the factual assessment of the Tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. 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 than if it was evidently intended to hurt."
"…the trier of fact must keep in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate and that the work environment may exceed the sum of the individual episodes."
"By contrast [the complainant] may complain of one or more matters which if taken individually may not objectively signify much, if anything, in terms of detriment. Then a contemporaneous indication of sensitivity on [the complainant's] part becomes obviously material as does the evidence of the alleged discriminator as to his perception. That which in isolation may not amount to discriminatory detriment may become such if persisted in notwithstanding objection, vocal or apparent. The passage… from the judgment of the US Federal Appeal Court is germane. By contrast the facts may simply disclose hyper-sensitivity on the part of the [complainant] to conduct which was reasonably not perceived by the alleged discriminator as being to [the complainants] detriment – no finding of discrimination can then follow."
The Appellant's Submissions
"Sharron Kay would have conveyed her likely lack of interest in a different way, not specifically revealing his or her sexuality: for example, he's married, he's attached"
Submissions for the Respondent
Discussion and Conclusions
"This does not reintroduce a requirement that the purpose of the discriminator has to be to discriminate; merely that the assessment of the reasonableness of the detriment is dependant on all the circumstances including, materially, this."
(There is no question of justification of direct discrimination: if this was ever in doubt, the case of R (E) The Governing Body of JFS  UKSC 15 makes it clear.) Here the evidence of the Claimant's conduct at Lytham and Sharron Kay's knowledge of it was plainly material to the assessment whether the Claimant had a justified sense of grievance at the words used, or not. We do not know what the Tribunal made of it.
Plainly and Obviously Right?
"By their very nature, sexual matters are private and confidential. Although some people are comfortable talking about their partner, many people do not share such information with their managers and colleagues. They may find it very difficult to make a complaint or be fearful that by making a complaint they will be "outed" in the workplace. Organisations should make strenuous efforts to ensure confidentially of procedures and information management systems and reassure their staff that policies to ensure confidentiality are in place."
The guidance goes on to observe that "outing" someone without their clear permission is inappropriate, constitutes a breach of that person's privacy and may constitute harassment. It notes that gay men are sometimes "outed" for malicious reasons and consequently suffer harassment.