APPEARANCES
| For the Appellant |
MISS ANYA PROOPS
(of Counsel)
Instructed by:
Messrs Flint Bishop & Barnett Solicitors
St Michael's Court
St Michael's Lane
Derby
DE1 3HQ |
| For the Respondent |
MRS JANE RUSSELL
(of Counsel)
Instructed by:
Messrs Russell Jones & Walker
Solicitors
50-52 Chancery Lane
London
WC2A 1HL |
SUMMARY
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
- It is well recognised that an Employment Tribunal does not have to answer every point which is raised before it by the parties. Its focus must, rather, be on what matters: and dealing with the central issues of fact and arguments of law put before it for decision. Many cases emphasise that particular care needs to be taken where the claim is one of discrimination. This is as true when the issues of fact and law are ones raised by a respondent employer as it is when they are raised by a claimant employee.
- This case stripped to its essentials is one in which the employer maintains that the Tribunal never grappled with the central factual issues, and analysis of the law in the light of them, in the context of claims of direct discrimination and harassment on the grounds of sexual orientation.
The Facts
- Six acts of discrimination alleged against Sharron Kay by the Claimant were found proved to be direct discrimination on the grounds of his sexual orientation, five of which were also found to amount to harassment. Six allegations of direct discrimination, and seven of harassment were dismissed. It was not a case in which the Tribunal accepted the evidence of one party wholesale in preference to that of the other.
- The Claimant is a male homosexual. He started working for the Land Registry (the Appellant Respondent) in April 2003. That was at Lytham. It was a large establishment. He was a team leader, responsible for 17 staff. He did not "come out" as gay for some time. Then he did. He chose to do so. There is no suggestion that it affected any aspect of his working relationships at Lytham. It became, therefore, well known amongst many working at Lytham that he was gay. Inevitably (says the employer) it became known amongst those who had to deal with the Lytham office, and those who had worked at Lytham and now worked elsewhere for the Land Registry.
- In October 2006 the Claimant was successful in achieving promotion. His promoted post was at Coventry Land Registry.
- The first accepted act of discrimination occurred in a conversation between Sharron Kay, the Claimant's new line manager, and an Irene Crothers, who had met the Claimant during the application process leading to promotion. The Tribunal found that Irene Crothers indicated to Sharron Kay that she thought the Claimant very pleasant. Sharron Kay knew that Irene Crothers was a single divorcee, and said:
"Don't go fluttering your eyelashes at him, he's gay"
- This comment was held to be discrimination because it revealed the fact that the Claimant was gay. We note that whereas the Tribunal said what Sharron Kay knew about Irene Crothers' social state it did not deal with what Sharron Kay knew about the Claimant. Her evidence (which against the background we have set out above was not in this respect disputed, so we understand) was that she knew that he was gay because he had revealed his homosexuality, of his own choice, while at Lytham. But of this the Tribunal said nothing.
- Indeed, one of the disturbing features of the decision is that in 35 pages the Tribunal never dealt at all with the employer's case that a central fact and feature was that whilst in employment at Lytham, the Claimant had made no secret of being gay, and had wanted others to know that he was, so that in approaching the evidence of Sharron Kay (the employer said) there was no basis for suggesting that she was deliberately "outing" him in Coventry contrary to what she understood to be his wishes, nor for suggesting that references to his sexual orientation were unwanted.
- In early October 2006 (it appears, after the conversation just mentioned) four people had a meal: the Claimant, a friend of his Alison Bradbury, Sharron Kay and Irene Crothers. Everyone there, therefore, knew of the Claimant's sexuality: Alison Bradbury, because she was a friend, Sharron Kay, because she knew, and Irene Crothers because she had been told by Sharron Kay, in the telephone call which was the subject matter of the first complaint. During the course of this meal, Sharron Kay asked the Claimant about his partner using the words:
"How is your partner Chris, how is he?"
- An issue for the Tribunal was whether, in saying what she did, Sharron Kay had stressed the word "He". The Claimant said she had. The Tribunal found she did not. The Claimant felt uncomfortable about being asked about a male partner in front of other work colleagues and believed that Sharron Kay had emphasised or over exaggerated the word "He".
- The third finding was that in November 2006, the Claimant was asked by the Head of Diversity to attend the next scheduled meeting of the Lesbian/Gay/Bi-sexual and Transgender (LGBT) focus group, due to be held on 16 March 2007. The Claimant copied Sharron Kay into his reply so that she was aware of it. She responded asking for details of the focus group. He replied that it was a diversity focus group of which he had been a member for some time which would make very little demand on his time. The Tribunal read exchanges of emails and concluded that Sharron Kay was pressing the Claimant to reveal the details of the diversity group and what it was for: and that she did so strongly suspecting that the focus group concerned sexual orientation. In the event, the Claimant did not attend the meeting because he felt that his attendance had not been endorsed by his managers.
- The fourth incident was that in March 2007 Sharron Kay while joking with other colleagues made a "limp wrist" gesture towards the Claimant, which he found offensive. The fifth allegation was that Sharron Kay was uncooperative with the Claimant regarding his use of fleet cars. The Claimant had a problem since he frequently had to travel north of Wednesbury where he lived to see clients, which if he were to use a fleet car would involve him first travelling south to Coventry, before travelling north again in a fleet car. The Land Registry's travel policy was strict, and seemed to require this. The Claimant sought to see whether he could overcome this real practical problem. When Sharron Kay in turn raised it with her line manager for ultimate decision she described it, however, as a "piffling matter", and then, when her manager made some suggestions which might help to resolve the difficulty she never in turn raised those suggestions with the Claimant.
- The sixth, and final, act of which complaint was made related to the 2 October 2007. The Claimant had fallen ill after June 2007. There were exchanges of text and emails between him and Sharron Kay, as the Claimant's manager relating to his illness. For approximately 6 weeks before 2 October, however, there was a break in such contact. Sharron Kay then sent an email reading:
"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"
- This followed an internal email to her forwarding one about the Claimant's sickness absence, asking her to confirm if the Claimant was still off sick: she responded to say that she could only "presume that Phil is still on sick leave".
Conclusions of the Tribunal Regarding These Findings
- The essential case, as described to us at the Appeal hearing, which the parties respectively had made at the Tribunal was (for the Claimant) that Sharron Kay, for whose actions the employer was responsible, had targeted the Claimant in a campaign to belittle him because of his sexuality. She had set out to cause him discomfort, and make life difficult for him.
- For the Respondent, the matters complained of were ordinary matters of management, or had been misinterpreted by someone who was overly sensitive. A major plank of its case was that the Claimant had "come out" in Lytham, and that any analysis of the legalities of what had taken place needed to recognise that fact.
- In the light of these submissions it is necessary to set out the Tribunal's reasoning in respect of each of the six matters that they found proved as acts of discrimination. Our principal focus will, however, be on the first two matters, since it is claimed by the employer that the way in which the Tribunal came to its conclusions in respect of the other four demonstrates that each was a "close run thing": thus, like a house built of a pack of cards, if the findings in respect of the first two incidents or either of them are flawed, the structure formed by the cards would collapse. The focus upon the last of the incidents was because it was the only one which was within the jurisdictional time limits, the claim having been made on the 22 November 2007. If that fell, then unless the Tribunal were to exercise its just and equitable discretion to extend time, there would be no jurisdiction to consider the complaints which the Tribunal did.
- The first incident (telling Irene Crothers that the Claimant was gay) the Tribunal found to be a detriment because the Claimant:
"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. "
- As to the second incident (the remark made in the conversation over dinner) the Tribunal made similar comments to the effect that details about sexual matters or an individual's sexuality are very private, whether the details are about a heterosexual or homosexual man. The Tribunal commented:
"…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."
- Having considered that there was no reliable evidence that Sharron Kay knew Chris well or at all the Tribunal concluded that on balance the reason why Sharron Kay asked the question, framed as it was, was because she wanted openly to 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."
- The Tribunal then concluded (paragraph 35) that this too, was, harassment.
- At no point in the Tribunal's discussion did it mention or analyse the fact that the Claimant had "come out" in Lytham, and that Sharron Kay claimed to know this, whether in evaluating her reasons for speaking as she did, the reasonableness of his reaction to what was said, and in reaching an objective view of whether what had occurred was less favourable treatment, or to the Claimant's detriment at work.
- As to the meeting of the LGBT group, the Tribunal concluded that Sharron Kay would not have treated somebody of different sexual orientation in the same way as she had treated the Claimant if that person wished to attend a meeting the nature of which they wished to remain confidential. The Tribunal concluded that the reason Sharron Kay acted as she did was because she wanted the Claimant to reveal what the group was, knowing as she did that the Claimant was gay. Presumably this would be for the purpose of embarrassing the Claimant – and once again the question of Lytham arises, for this purpose would only make sense if she thought the Claimant did not appreciate that she knew of his orientation, and wished it to remain secret.
- The gesture made with a limp wrist was, the Tribunal found, made because of the Claimant's sexual orientation. She would not have made it to someone of a different orientation. Her conduct in doing it subjected the Claimant to a detriment. This is a finding of fact. At paragraph 19.14 the Tribunal noted that no witness (other than the Claimant) observed it, though witnesses who might have done were present. Sharron Kay said that she has a mannerism where she reaches out her hand which she believes might be misconstrued as such a gesture. This was supported by a number of witnesses who had observed Sharron Kay using her hands expressively when talking. But she did not do so in front of the Tribunal, a fact which it noted. It concluded:
"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)
- The finding as to a lack of cooperation regarding the use of fleet hire cars was expressly reached by drawing an inference from the Tribunal's findings about the comments to Irene Crothers, and the limp wrist gesture. The Tribunal added:-
"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.
- As to the email of 2 October 2007, the Tribunal took the view that:-
"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"
- The Tribunal therefore considered all the evidence before drawing its conclusions of fact. It was right to do so: acts of alleged discrimination rarely take place in a vacuum, nor is an individual's reaction to them well evaluated in isolation from his reaction to other matters. It may be noted that the Tribunal took into account its findings as to the comments to Irene Crothers on the phone and to the Claimant at the dinner party when determining those matters which arose afterwards. It was bound to do so, for to focus on one act alone, as if in a watertight compartment, risks excluding the evidence provided by the whole. However, it also has this consequence: in a case in which, despite its view of the whole, a Tribunal disbelieves a Claimant in many respects, or regards him as being over-sensitive in his complaints about some matters, to pay regard to the whole of its findings should be to pay regard to those findings too. It did not expressly do so, though we acknowledge that the findings of fact are for a Tribunal to make, and not for us.
- However, the Tribunal's own decision shows that a number of findings were not easy for it to make. Thus the finding as to the "limp wrist" gesture involved accepting the Claimant's evidence when it stood alone, unsupported by the evidence of a number of others, and despite the fact the Tribunal felt unable to rely upon his unsupported evidence on some other matters. The Tribunal said expressly it was not an "easy issue" for it. The impression given by the wording is that it was "borderline": and it must necessarily have crossed the border only by consideration of all the evidence. The finding about the use of fleet hire cars expressly depended on the finding about the limp wrist gesture, as well as the comments to Irene Crothers. If any of those conclusions were flawed, then this finding would have to be reconsidered, and so necessarily would the conclusion which the Tribunal reached about the email, which expressly depended upon the same findings as to the earlier matters. In short, the wording of the Tribunal shows that it regarded each decision as lending support to the other, without which the edifice constructed by the Tribunal might not stand.
The Law
- The Employment Equality (Sexual Orientation) Regulations 2003 provide by regulation 3:-
"(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."
- Regulation 5 deals with harassment on the grounds of sexual orientation:-
"(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."
- The test is thus an objective one, albeit it has regard to the subjective response of B to what is alleged: although the question plainly emerges from the wording of the Regulation itself as to who it is who does not want the conduct (presumably B, but the Regulation leaves it open) and whether A has to know that it is unwanted.
- Both Regulations 3 and 5 respectively define what is direct discrimination on the grounds of sexual orientation, and harassment on those grounds. Regulation 6 is the Regulation which provides for the circumstances in which such conduct is contrary to law. So far as material it provides:-
"6.. …
(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."
- By Regulation 22(1):-
"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."
- It is common ground that the Land Registry are here responsible for the acts of Sharron Kay. No point is taken as to whether her actions, for instance in respect of the social phone call, or the dinner, may not have been in the course of her employment. It is accepted that they were. Accordingly, Sharron Kay is not a party to this appeal.
- In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] ICR 337 the House of Lords considered the meaning of detriment. The case was one of alleged sex discrimination. The Head Note summarises the speeches to the effect that 'detriment', within the meaning of Article 8(2)(b) of the Sex Discrimination (Northern Ireland) Order 1976 (which is in materially the same terms as the cognate provision in the Sex Discrimination Act 1975, adopted within the Employment Equality (Sexual Orientation) Regulations 2003 ("The Orientation Regulations") and therefore applicable to the present case) existed if a reasonable worker would or might take the view that the treatment accorded to her had in all the circumstances been to her detriment; and that it was not necessary to demonstrate some physical or economic consequence.
- There are, however, important general observations in the case:
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."
- Pausing there, the present case might be regarded as one in which the issues are indeed intertwined. Mr Grant's case before us was to the effect that there was a campaign of targeted hostility by Sharron Kay towards him, on the grounds of his sexuality: if this was what the Tribunal found, then plainly the case was made out, and the six matters identified by the Employment Tribunal hung together.
- Returning to Shamoon, in the speech of Lord Hope agreed in by Lord Hutton and Lord Scott (with some slight reservation at paragraph 105) he accepted the principles derived from Chief Constable of the West Yorkshire Police v Khan [2001] ICR 1065HL, Ministry of Defence v Jeremiah [1980] 1CR 13, at 31:-
"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 [1986] 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) [1995] IRLR 87. But, contrary to the view that was expressed in Lord Chancellor v Coker [2001] ICR 507…it is not necessary to demonstrate some physical or economic consequence."
- In Richmond Pharmacology v Dhaliwal [2009] ICR 724, the Employment Appeal Tribunal considered Section 3A of The Race Relations Act 1976, which defines harassment for the purposes of that Act. It noted that the provision in Regulation 5 of the Sexual Orientation Regulations with which we are here concerned was similar. The analysis which the Tribunal adopted confirms that which we have set out above: in considering whether unwanted conduct had the purpose or effect of violating a claimant's dignity or creating an adverse environment for him regard had to be had to the proviso, which is that conduct is only to have the effect specified if should reasonably be considered as having that effect. As Mr Justice Underhill, President, giving the judgment of the Tribunal said ( paragraph 15) when considering the wording "having regard to …the perception of that other person" such an approach was not truly liable to cause confusion and to lead Tribunals to apply a "subjective" test by the back door:
"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."
- A footnote was added to the judgement to emphasise that these closing remarks were not intended to reintroduce a requirement of "purpose" by the back door – the point was not that the perpetrator could not be liable under unless he intended to cause offence but rather that, if he evidently did not intend to, it may not be reasonable for the Claimant to have taken offence, objectively viewed.
- The Tribunal here were thus bound to consider the question of harassment by making an assessment first whether the matter was unwanted (which would overlap with a question whether it created adverse environment for the Claimant); second whether the purpose of the actions of Sharron Kay was to violate the dignity of the Claimant or create an intimidating, hostile, degrading, humiliating environment for him, if not then, third whether it could reasonably be considered as having that effect, since "purpose" and "effect" are separate routes to liability, and it is only "effect" which is subject to the consideration of "reasonableness". It may be very rare indeed that a Tribunal has to consider a remark which caused offence and was intended to do so but which was nonetheless a remark (conduct) which did not fall foul of the "purpose" limb of the definition. But such circumstances will perhaps sometimes exist.
- Further useful observations appear in Driskel v Peninsular Business Services Ltd [2000] IRLR 151 (although it needs to be borne in mind that the case was decided before the current statutory definition of harassment was introduced into the legislation). The case emphasised the importance of placing individual remarks in context, citing words of a US Federal Appeal Court which pithily encapsulated it:
"…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."
- Driskel itself concerned an incident in which the failure of the Claimant to make an immediate protest to the person whose remarks she found offensive was relied upon by the Employment Tribunal to justify a finding that the discriminator was simply not aware of the hurt and offence his remarks might cause, and therefore had not been guilty of harassing her. The Appeal Tribunal rejected this approach where an act may be so obviously detrimental as being intimidating or undermining of the dignity at work of the Claimant that the lack of any contemporaneous complaint was of little or no significance. Then this is said:-
"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."
- Here, the Tribunal did not base its conclusions as to harassment on it being the "purpose" of Sharron Kay to produce the environment which was proscribed, but upon it being the "effect". A major plank of the Appellant's argument was that (given the "Lytham" point) the Tribunal was bound to hold that the alleged discriminator could not and would not have perceived her conduct as being to the complainant's detriment, and that "no finding of discrimination can then follow".
The Appellant's Submissions
- Ms Proops for the Land Registry began by stating that at the heart of the appeal lay the question how allegations that Sharron Kay had "outed" the Claimant as a homosexual, with the implications that this was contrary to his wishes, could be squared with what had happened at Lytham. A central plank of the Appellant's case was that the evidence that the Claimant had been open about his sexual orientation at Lytham was common ground. The Claimant's own solicitors confirmed, as did paragraph 7 of his witness statement, that the issue of his sexuality was known throughout the Lytham office. Sharron Kay said she knew of it. The Appellant contended this was all the more significant given the size of the Lytham office (334 employees). This, it maintains, was a critical issue, expressly relied on in its written and oral submissions to the Tribunal, which cried out for evaluation and analysis yet simply found no reflection at all in the decision. The submission was that the fact that Mr Grant was content that for his sexuality to be known throughout the Lytham office meant that he had suffered no detriment (as that word is used within the relevant statutory provisions) as a consequence of the comments made by Sharron Kay.
- He it was who had voluntarily opted to bring his sexuality into the work-place. The comment made to Irene Crothers by phone was factually correct. On the face of it, it was not obviously unreasonable in the circumstances for the comment to have been made. There was no finding that it was part of any campaign by Sharron Kay to undermine the Claimant at his work – in particular no malicious motive was identified. The context within which acts take place is critical in cases of alleged discrimination (this is so well established that it needs no authority: but if it did, then Dhaliwal, and Driskel both emphasise the need for it particularly where it cannot be said that an act is obviously and without more necessarily discriminatory in itself). The Tribunal had simply failed to note that central fact, and when analysing the legal consequences of what was said both at the phone call and at the subsequent dinner took no account of the fact that there had been no complaint made at the time (Cf. Driskel). Nor had there been an analysis of the fact that there were tensions in the relationship which had nothing to do with the sexual orientation of the Claimant (see e.g. paragraph 19.13 of the Tribunal's reasons).
- The Tribunal had misdirected itself in holding that (in relation to the phone call) the Claimant was treated less favourably than a "straight" comparator would have been because:
"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"
- The first of those examples revealed a flaw, since societally a reference to someone being married is to imply a heterosexual orientation: but, more importantly, "less favourable treatment" involved there being (a) a difference of treatment (b) which was less favourable because it was different. A difference of treatment on its own does not necessary amount to less favourable treatment, but the Tribunal here appeared to assume it did. However, the law (see Burrett v West Birmingham Health Authority [1994] IRLR 7, at paragraph 9 per Knox J; Lynn v Rokeby School Board of Governors (EAT/86/99) at paragraph 13 per Lindsay J) was that the test is objective: see R on the application of Birmingham City Council v Equal Opportunities Commission [1989] AC 1155, at 1193 per Lord Goff. To take an approach which assumed, first, that there was a difference in treatment, and secondly that it was less favourable, required an objective evaluation of the treatment as being less favourable – and this could not have been based upon the subjective preferences of the Claimant. The further conclusion that this gave rise to a detriment was perverse (since that fell to be assessed on the basis of the law set out in Shamoon (above) and hence within the reasonable perceptions of a Claimant).
- As to the conversation at dinner, the Tribunal's starting point (paragraph 34 of its decision) was that the details about sexual matters or an individual's sexuality were very private, but revealing an heterosexual man's identity as such in the workplace would not be directly comparable to revealing that of a homosexual man, particularly since there might be sensitivities particular to the latter case. Thus the proper comparison to be made would be asking about a heterosexual man's partner where he might feel a degree of discomfort - if, for example, he was having an affair. Ms Proops complained that here the Tribunal simply assumed that matters relating to an individual's sexuality and orientation were inevitably always very private, whereas whether that was so depended on the facts of the case. It might be so in many cases: but not so in others. The appropriate comparison was not with the examples which the Tribunal adopted, but with a scenario in which Ms Kay asked a heterosexual how his wife was.
- The issues in respect of the LGBT group meeting, and the fleet cars relied upon the conclusions in respect of the phone call and dinner to inform them; and the conclusions on the "limp wrist" issue were unsafe because they made no reference to important evidence given by a witness, Mr Smith, and relied unduly upon how Ms Kay conducted herself in giving evidence. Since she had been criticised for making a gesture of a "limp wrist" sort the absence of such gestures in evidence might be expected. It was very dangerous for a Tribunal to determine that how a witness behaved in a witness box was how she behaved at work.
- The email of the 2 October was innocuous.
Submissions for the Respondent
- Mrs Russell, in impressive submissions, first cautioned that the Land Registry started by assuming a level factual playing field between those of different sexual orientations. That fundamentally missed the social reality. Someone who was gay might, if that fact were known, be subject to denigration, disadvantage, abuse and sometimes violence, so ingrained were some discriminatory attitudes. Thus a homosexual would not only wish but be entitled to control how he revealed his sexuality to others, choosing the moment, the place, and the identity of those to whom he revealed it. The Land Registry's submissions risked reintroducing the concept of "justification" into the field of direct discrimination and harassment where it had no place: see Moyhing v Barts and London NHS Trust [2006] IRLR 860, at paragraph 24.
- Where observations which it was unnecessary to make were related to a homosexual's sexuality it was their unnecessary nature which made the observations pointed.
- She accepted toward the start of her submissions that the essential case for the Claimant was that there had been a campaign by Sharron Kay to undermine him, of which the incidents found by the Tribunal to be discriminatory or to be harassment were part. The Tribunal had in respect of those incidents not found the Claimant to be hyper-sensitive. The decision could not be said to be perverse. There was a detriment because her "outing" of the Claimant deprived him of the control which he was entitled to have over that process in a new environment. To be deprived of the choice was to suffer a detriment which was real to him: it met the test in Jeremiah v Ministry of Defence [1980] ICR 13. Advocate General Maduro, at paragraph 22 of his opinion in Coleman v Attridge Law [2008] IRLR 722, rightly observed that the Framework Directive for Equal Treatment in Employment (2000/78/EC) did not allow the hostility that an employer might have against people belonging to enumerated suspect classifications to function as the basis of any kind of less favourable treatment in the context of employment and occupation, and significantly noted that such hostility might be expressed not only overtly by targeting individuals with those characteristics but in a more subtle and covert manner by targeting those who were associated with individuals having those characteristics. Here, Sharron Kay had gone ahead and revealed the Claimant's sexuality, knowing that he did not wish it to be revealed and displaying her lack of sensitivity.
- In considering allegations of perversity, we should bear in mind the warning given in Yeboah v Crofton [2002] EWCA (Civ) 794 that an Appeal Tribunal cannot substitute its own assessment of the evidence and overturn findings of fact made by a Tribunal: a case based on perversity may only succeed where an overwhelming case is made out that an Employment Tribunal reached a decision which no reasonable Tribunal on a proper appreciation of the evidence and the law, would have reached. There was sufficient in each of the incidents, taken together and in context, to show that the Tribunal's conclusion was permissible: the "limp wrist" gesture was one determined on the facts. That is the function of a Tribunal. The Tribunal noted that when Sharron Kay was watching the Claimant giving evidence she appeared at times to be contemptuous of it: and when she, in turn, was cross examined was "particularly dismissive" of the Claimant's case and displayed "a surprising degree of hostility" to points being raised on behalf of the Claimant. It was not difficult to understand why the Tribunal might reach the conclusions it did in respect of each of the incidents, given such a person with such an attitude at the heart of them. The email on 2 October had, too, to be seen in context. It was different in tone from those that had preceded it. It could properly be read as questioning whether the Claimant was, truly, sick: and the Tribunal was entitled to find that was because of the hostility which Sharron Kay had toward him.
Discussion and Conclusions
- In this case, the Tribunal accurately set out the legal principles. It took considerable care to resolve material disputes of fact (for example, where, what and how matters were said were in dispute, and these disputes were resolved). The questions for us are whether its decision was perverse (that is, the conclusions it reached were wholly impermissible in the light of the decided facts, and the application of them to concepts such as less favourable treatment and detriment, such that an observer might say "My goodness – that can't be right"); and whether the Tribunal took into account those matters of fact which were critical to its analysis of the application of the relevant legal principles to the decided facts. For practical purposes, on this latter point we have to determine whether the Tribunal's failure (a) to mention at all the fact that the Claimant had willingly "come out" at Lytham, and that his sexuality was well known to the many members of the work force there (who would inevitably, it may be thought, move around the various branches of the Land Registry); and (b) the failure to indicate any conclusion as to whether Sharron Kay did set out to undermine the Claimant, demonstrates an error of law.
- It is trite law that a Tribunal has to set out with sufficient reason why it decides that one party should lose and the other party succeed. This is both an elementary requirement of justice so far as the parties are concerned, but secondly acts as a necessary discipline for the decision maker, who can double check that his conclusion is justified by his reasoning; and, thirdly, it enables a court of appeal with a review jurisdiction, such as this Tribunal, to see if the conclusion is in error. But this principle does mean that a Tribunal is required to dot every "i" and cross every "t" in relation to every act and submission before it. It would be a pity if the inclination of the parties in many cases to cite a plethora of authorities for points which are not in contention, or which are illustrative rather than declarative of principle, were to have the result that each and every case had to be referred to in the judgment of the court to whom they are cited. Selectivity is not only desirable, but a necessary quality of proper decision making. Focus is all - on the principles that matter, the central material disputes of fact, and those matters critical to the analysis by which the principles are applied to the facts.
- A Tribunal reaching a factual evaluation, and applying legislation to it, is not engaged in quite the same process as a decision maker exercising a discretion, or reaching a judgment which might be amenable to Judicial Review if it failed to take into account relevant considerations. However, where a Tribunal fails to take into account, in its analysis, a matter of central significance, so that the parties do not know why (on that point) the decision has gone against one, and in favour of the other, or simply are left in ignorance whether the point has ever been considered at all as it should have been, there is an error of law. This is true only of matters of central importance: it is well accepted that a Tribunal does not have to deal with the effect of the evidence of every witness. An example here is that of Mr. Smith, who gave important (but not centrally important) evidence about the way in which Sharron Kay used expressive hand gestures capable of misinterpretation. No reference was made to that evidence by the Tribunal. But that would be an insufficient basis in this case to suggest that its findings as to the limp wrist incident had not taken it into account.
- That said, it is very easy for appeal hearings to focus upon matters which were given no significance in either the conduct of the proceedings or the arguments of the parties below. Therefore any appeal based upon a suggestion that a Tribunal has ignored a central fact, the implications of which it was required to address before it could properly draw its conclusion, is not one lightly to be reached.
- Miss Proops was right when she identified a central issue in the case as being what the Tribunal made of the fact that the Claimant had chosen to reveal his sexuality at Lytham, such that it was known throughout that branch of the Land Registry.
- She was also right to draw attention to the absence of any finding that Ms Kay was engaged in a campaign to undermine the Claimant because of his sexuality. It is difficult (though not impossible) for the Tribunal to have come to the conclusion it did as to the Crothers phone call, and then the dinner conversation, without placing them in the context of some such campaign. Yet when the Tribunal had to consider whether what Sharron Kay did amounted to harassment, it could have determined that the purpose of what she said, and did, was to cause the intimidating, hostile, degrading, humiliating or offensive environment of which Regulation 5 speaks. It did not. It decided that that was the effect of what she did. This indicates that the Tribunal did not take the view that it was her purpose to do so: otherwise there would have been no need to consider whether it was reasonable or not for the Claimant to react to the use of the words as he did, for the reasonableness of his reaction only comes into play if it is "effect" rather than "purpose" which is established. This might, therefore suggest that the use of the words in the phone call (and at the dinner party) was accidental, and not intentional – but this distinction, of such importance as we have demonstrated, is not drawn by the Tribunal here.
- A campaign to undermine Mr. Grant might have been implicit, given the observations by the Tribunal of Ms Kay's reactions to which Mrs Russell drew our attention, coupled with its finding on the "limp wrist" gesture. But the latter finding was expressly a difficult one to reach, and plainly took into account the phone call and dinner conversations before it could be reached. Moreover, the Tribunal itself acquitted Ms Kay of discrimination and harassment in respect of as many allegations as it found. It is thus not necessarily an implicit finding.
- We were told that Ms Kay herself was a good friend of a homosexual whose wedding ceremony she had been invited to and did attend. Although we reject the suggestion made to us that this meant that she would not have been discriminatory toward the Claimant (an argument reminiscent of the "many of my best friends are…" which over the years Tribunals have properly come to regard dismissively), it might have had some analytical impact in determining the relevance of Sharron Kay's knowledge that the Claimant had "come out" at Lytham in evaluating the phone-call incident, for she did not otherwise know him.
- When the Tribunal considered the claim for direct discrimination about this phone call it had to ask whether the Claimant had been subjected to treatment different from that which would have been afforded a heterosexual man, if that treatment was less favourable to him, and if he thereby suffered a detriment. The first of these requirements was addressed by the Tribunal at paragraph 32 – but we accept Ms. Proops' submission that a description such as "he's married" would effectively reveal heterosexual orientation. The Claimant would therefore have been treated, over materially the same matter, in materially the same way as a "straight" man would have been. There would be no room for differential treatment. "He's attached" (the other example of what the Tribunal thought might have been said) would certainly not have revealed orientation. However, the Tribunal's choice of "He's married/ he's attached" as alternatives to "he's gay", one of which reveals sexual orientation for all practical purposes, one of which does not, illustrates that there is some difficulty in determining the comparison of like-with-like from which to establish less favourable treatment. Critical, here, we think is the analysis of whether Sharron Kay had in mind that the Claimant might find it objectionable (as he did) to have his sexuality referred to. Had that been the case, we consider that the Tribunal would have been entitled to say that in truth what was happening here, in the conversation, was not simply a conversation about the lack of availability of a man for a sexual relationship but, rather, words used with the intention of undermining that man purely because of his sexuality. That would undoubtedly been different treatment from that given to a heterosexual, would have been less favourable and would have caused a detriment. If, however, there were no intent to target Mr. Grant, such that though the remark may actually have been unwanted by him, it was made in the belief that he would not mind at all (because he was open about his orientation, and had already opened up his sexuality in employment with the self-same employer) we consider it is more difficult, though not impossible, to conclude that he was treated differently from the way a heterosexual man in materially the same circumstances would have been. The material circumstances of each case might well have been held by a Tribunal then to be that she was describing the unavailability of both in terms which she thought would offend neither. (It is for the Tribunal to assess what circumstances are material, so that the comparison can be made.) So described, the treatment is the same: but we cannot say it would necessarily be wrong for the Tribunal to focus not upon a broad appreciation of what was happening, but upon the precise words. It is for a Tribunal to establish, within the bounds of reason and reasonableness, what the relevant circumstances are within the bounds of which the comparison falls to be made, and we cannot say that a focus on the actual words was perverse. But we can say that it should have demonstrated how it dealt in this context with the fact – if it had reminded itself of the fact at all – of events at Lytham.
- As Shamoon demonstrates, the fact that treatment is less favourable must be determined objectively, though taking into account the effects, necessarily subjectively felt, by the person purportedly discriminated against. An unjustified sense of grievance cannot amount to a detriment: a reasonable worker must be able to take the view that by reason of the act or acts complained of he had thereby been disadvantaged in the circumstances in which he had thereafter to work. As the judgment in Dhaliwal points out, the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt. The fact that it did hurt is not evidence that it was intended to: the fact that it was not intended to may be relevant in determining whether the sense of grievance was or was not justified in the Shamoon sense. As Mr Justice Underhill, President, observed:-
"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 [2009] 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.
- Similarly, the findings in respect of the dinner party conversation criticise Sharron Kay for the unnecessary use of words – "how is he?" We can understand how these words could be held to be different from words used to a heterosexual, be less favourable, and cause offence and detriment, and create a humiliating environment – if it was part of the intent of Sharron Kay to undermine Mr.Grant. It is less easy to see how they could be held so where (objectively viewed) they were uttered by a person who knew that everyone present already knew that the Claimant was gay (Alison Bradbury, because she had told Sharron Kay, so Miss Kay said – it was not in dispute that she knew; Irene Crothers, because Sharron Kay had earlier told her during the phone call; Sharron Kay herself, and obviously the Claimant). Thus there was no actual "outing" to Irene Crothers, though the Claimant may have thought there was. It is not at all easy to understand how, applying the definition of detriment from Jeremiah, the Claimant was thereafter and thereby subject to a disadvantage in his workplace: if it was that he felt that the remark was pointed (as he did), then the question whether his sense of grievance was justified arises. As with the phone conversation with Crothers, the Tribunal found harassment made out because of the effect of the words, not the purpose with which they were spoken. Though it may just be possible to sustain the conclusions the Tribunal reached on the basis it adopted, this whole incident fell to be analysed with specific reference to the Lytham evidence. There is no such analysis.
- The conclusions as to the first two incidents affect those in respect of the last four. On the logic expressed by the Tribunal those other findings cannot be sustained if the first two (or, it may be, either of them) falls. It is worth noting that this is so not only in respect of all the findings apart from the "limp wrist" (because none in themselves, taken in isolation, is obviously inherently discriminatory) but also that finding too, for it appears to have been a finely balanced conclusion which took into account those other findings.
- Applying the principles we have set out at paragraphs 56 – 59 above, we have concluded that this Tribunal needed expressly to recognise that the Claimant had "come out" in Lytham, and to deal with both the implications of that, and of Sharron Kay's knowledge of it, in its analysis of what took place. If (as for all we know, having read the decision) the Tribunal ignored that fact, then the analysis was inevitably flawed. If it did analyse that fact, its conclusions might have demonstrated an error of law – but because we do not know that they did, it cannot be demonstrated.
- The analysis the Tribunal makes appears consistent with acceptance of a campaign to undermine Mr.Grant because he was gay, or relying upon his homosexuality: yet it did not deal in terms with whether Sharron Kay discriminated against him by doing what she did unintentionally, by a lack of sensitivity coupled with ignorance, rather than by design: indeed, where it dealt with the basis on which it found harassment made out, indicated the former rather than the latter. Discrimination is a social evil. Tribunals should not be shy of saying exactly what they find an individual discriminator has done, and where relevant why. That person too is entitled to know – and here we can see that Sharron Kay may be left unsure whether the Tribunal thought that she had set out to denigrate Mr.Grant because he was gay, or whether it was rather that she was careless in passing remarks. Intention to discriminate is not necessary in law for there to be discrimination, nor harassment: but it remains highly relevant to an assessment whether conduct which is not inherently and self-evidently discriminatory is or is not unlawful.
- If, as we hold, the Tribunal failed to do that which they should have done – recognise, and deal with the fact – that does not dispose of the appeal. We have fought shy of holding the Tribunal perverse in its conclusions. We still have to ask whether despite the failure to mention and address the two central issues we have identified – events at Lytham, and whether Sharron Kay was attempting to undermine the Claimant by what she did, on the ground of his sexual orientation - the conclusions might nonetheless be plainly and unarguably right, such that we should dismiss the appeal in any event.
Plainly and Obviously Right?
- As to this latter point, Mrs Russell makes a powerful argument that, here, the facts demonstrated a deliberate undermining of the Claimant by Sharron Kay (and there would thus be no need to spell it out). The words she used to Irene Crothers and at dinner were unnecessary. There was hostility between her and him: but not simply because of differences of character. The "limp wrist" gesture showed that homosexuality was at least part of it. The ACAS guide to Sexual Orientation and the Workplace provides important guidance. At paragraph 3.8 it records:-
"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.
- We not only fully accept, but endorse the submission that although the social equality of homosexual and heterosexual men is a matter of legal standing, this legal equality does not reflect current social realities in which the gay man may in many circumstances face adverse consequences simply by reason of mentioning the fact that he is gay. His heterosexual counterpart does not, where he reveals he is straight. Experience may teach the gay man to be fearful of being too open. Control over whether, when, in what circumstances and to whom his sexuality is revealed if it ever is to be is important to him. Employers need to be sensitive to that fact. An absence of intention to treat a gay person less favourably on the grounds of his orientation does not insulate an employer from a successful claim, where there is such treatment, objectively viewed, on such grounds. But powerful though the submission is, and although it persuades us that on one view of the facts it may not necessarily have been perverse of the Tribunal to conclude as it did, it cannot convince us that what the judgment does not expressly mention it conveys by necessary and sufficient implication, to the effect that we can feel confident the Tribunal thought it was Sharron Kay's purpose to undermine the Claimant. It is insufficient to convince us that notwithstanding the flaws the decision was plainly and obviously right: there is nothing inherently undermining about the words used by Sharron Kay to Irene Crothers, either on the phone or at dinner. The Tribunal considered that it was reasonable for the Claimant to have felt that the use of those words, in the context of the phone conversation was humiliating, and did not consider in that regard that he was overly sensitive (paragraph 33). This is linked to the factual finding that Sharron Kay made the comment she did "because she wanted to inform Irene Crothers of the fact that the Claimant was gay." But in a context in which the Tribunal did not make the finding of harassment it did on the basis that the purpose was to humiliate the Claimant, but on the basis that that was its effect, the analysis that led to the conclusion that this was "humiliating", and that it was not unreasonable to take offence, it needed to be spelt out. It is not obvious. The conclusion is not plainly and obviously right.
- Again, in dealing with the dinner conversation the Tribunal observed that the Claimant legitimately did not wish his sexuality to be revealed. The analysis of differential and less favourable treatment as to the dinner conversation used as a materially comparable situation one in which a heterosexual man might feel a degree of discomfort about being asked about a partner with whom he was having an affair, of which Sharron Kay knew, and the question revealed the fact. However, the comparison would, on the Land Registry's case, only be of materially similar situations (Mr. Grant's and the comparator's) if it also included the additional facts that the affair was common knowledge in a large sector of the work force, and Sharron Kay knew that too. Otherwise the circumstances of the Claimant and the comparator would be different, and a proper comparison could not be made. Without consideration of the implications of the Claimant's "coming out" at Lytham we cannot say that the decision was plainly and unarguably right. The phrase "legitimately did not wish his sexuality to be revealed" appears to presuppose that it had not been revealed to the relevant audience beforehand: and the analysis might be different if that further fact were considered. We cannot therefore say that irrespective of the view taken by the Tribunal of the "Lytham point" the result would necessarily have been the same.
- Since we are not persuaded that the conclusions in respect of either of the first two incidents were plainly and obviously right, irrespective of the flaws identified above, and since each of the successive conclusions built upon the conclusions as to those first two matters, and the totality of the others, and none (except perhaps the "limp wrist" gesture) was inherently and obviously discriminatory of itself, we cannot feel satisfied that any of the decisions as to discrimination or harassment would necessary have been reached irrespective of the Tribunal's conclusions as to the impact of the Lytham point. Even the limp wrist matter was a finding open to re-interpretation (as the Tribunal recognised in thinking it not easy to decide): determining whether or not it was the sort of gesture she often made, which had been misinterpreted by the Claimant was dependent in context upon the other findings.
- Accordingly, we have come to the conclusion that this appeal must be allowed.
- We would wish to make it very clear, however, that if a Tribunal comes to the conclusion that a gay employee has been "outed" against his wishes to those whom he would rather not know of his orientation that fact alone may well constitute an act of discrimination or harassment. All will depend on the context. In general it is not unreasonable to expect those who are gay to be fearful of the consequences of others knowing that fact, especially when they have no control over the release of the information. It cannot be assumed that a passing remark which has the effect of "outing" a homosexual is necessarily so trivial that it leads to no legal consequences. Nothing in our judgment should be understood as accepting the contrary.
- Ms Proops submitted that if we allowed the appeal, but were minded to remit, we should remit to a fresh Tribunal. Sinclair Roche & Temperley v Heard [2004] IRLR 764 sets out relevant factors in deciding whether remission should be to a fresh or new Tribunal. The factors are proportionality; passage of time; apparent or actual bias or partiality; that the decision under appeal was totally flawed; and the elimination of allowing a "second bite of the cherry" to the decision maker; all set against an expectation that a Tribunal is to be assumed to be capable of a professional approach in dealing with the matter on remission. Ms Proops submits that here the Tribunal has committed itself to a view of Ms Kay, which risks the appearance of pre-judgment on remission. There is the danger here that the Tribunal has on the face of it already made up its mind in relation to the matters before it, such that it may well be difficult if not impossible to change it. Thus there is a very real risk of an appearance of pre-judgment or bias if that is what the Tribunal does. She reminds us that Burton J said in Sinclair Roche that there may be a very real and human desire to reach the same result, if only on the basis of the natural wish to say "I told you so".
- It is now over two years since the original hearing. The Tribunal is plainly professional: in many respects, its decision was exemplary, even if open to the central flaws we have identified. We consider, however, that the points made by Ms Proops are well taken, and also that the passage of time makes it all the more difficult for the same Tribunal to resolve some of the matters again, to the extent needed to give a decision. The force of the facts is likely to have dimmed, or be mis-remembered.
- With a view to proportionality of the remitted hearing to the obvious cost and inconvenience involved, the only matters which the Tribunal needs to consider are, however, the six matters with which this appeal has been concerned. The other findings, dismissing the claims against the Land Registry, stand.
- It may be that the fresh Tribunal will wish to begin by considering the question of jurisdiction in the light of the email of 2 October 2007: that is a matter for it. It will otherwise wish to consider its decision as to the facts in the light of this judgment, insofar as it may be helpful to do so.
- The appeal is therefore allowed, and the case remitted to a fresh Tribunal to consider jurisdiction, the 6 allegations of discrimination, and the 5 of harassment.
