HM Land Registry v Grant
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Patten,Lord Justice Mummery,Lady Justice Smith |
| Judgment Date | 01 July 2011 |
| Neutral Citation | [2011] EWCA Civ 769,[2010] EWCA Civ 1176 |
| Docket Number | Case No: A2/2010/1066/EATRF,Case No: A2/2010/1066 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 July 2011 |
[2010] EWCA Civ 1176
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Before: Lady Justice Smith
Case No: A2/2010/1066
Ms Sandhya Drew and Ms Jane Russell (instructed by Russell Jones and Walker) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
(As Approved)
Lady Justice Smith:
This is a renewed application for permission to appeal a decision of the Employment Appeal Tribunal (EAT). The EAT allowed the Land Registry's appeal against the decision of the Employment Tribunal (ET) that Mr Grant had been discriminated against on the ground of his sexual orientation and had been harassed, in both cases by his line manager at the Land Registry in Coventry.
The main reason why the EAT allowed the appeal was that it took the view that the ET had not properly taken account of what the EAT regarded as a very important piece of evidence, namely that Mr Grant had while working at the Land Registry's Lytham branch made it plain to colleagues that he was gay. The ET was also satisfied that Mr Grant's line manager at Coventry, Sharron Kay, knew about the situation that had prevailed for some months in Lytham and therefore believed that Mr Grant was quite relaxed and open about his sexual orientation.
The EAT appears to have been satisfied that that was the evidence before the tribunal and that the tribunal had failed to give proper consideration to that important evidence. However, on receipt of the EAT's draft judgment, counsel for Mr Grant wrote to the EAT suggesting that the evidence before the ET had not been as the EAT had described it. No change was made to the EAT judgment in the light of that submission.
Counsel now seeks to submit that the EAT misunderstood the state of the evidence given by Sharron Kay. She had never said that she had known that Mr Grant had revealed his sexual orientation to colleagues at Lytham and she had never claimed to have any reasonable belief that he was relaxed about disclosure of his orientation to others. Counsel accepts, somewhat ruefully, that, on receipt of the notice of appeal to the EAT, it had not been appreciated how much emphasis was going to be put on these aspects of the case and counsel had not called for the Chairman's notes of evidence of Ms Kay's cross-examination.
It has been demonstrated to me today that Sharron Kay's witness statement, which I understand was taken as her evidence in chief, does not claim to have had any knowledge or understanding that Mr Grant had made his homosexuality generally known at Lytham; nor does she claim in advance of his arrival to have had any belief that he was happy that his sexual orientation should be generally known.
Thus it does appear to me arguable that the EAT may have misunderstood the evidence about this issue and it did not have before it, for reasons that I have explained, the notes of evidence which would have enabled the situation to be clarified. In consequence I have come to the conclusion that I should allow this case to go forward to a hearing.
However, there is another reason why it may be appropriate for the full court to consider this matter. These allegations of discrimination on grounds of sexual orientation and harassment are very much at the lower end of the scale of the kind of allegations that one comes across in cases of this kind. It seems to me that arguable issues arise as to whether the ET took the correct approach to detriment and, in the context of harassment, of the effect on the effect of the acts of alleged harassment on the victim. It seems to me not inappropriate that the Court of Appeal should give consideration to the ET's approach to those issues.
So for those two reasons I have decided to grant permission.
The appeal is to be listed before a court of three which may comprise one High Court judge in addition to two Lords Justice. At least one member of the court must have experience of discrimination cases in the field of employment.
Order: Application granted
[2011] EWCA Civ 769
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
The Hon Mr Justice Langstaff sitting with two lay members
UKEAT/0232/09/DA
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Elias and
Lord Justice Patten
Case No: A2/2010/1066/EATRF
Ms Sandhya Drew and Mrs Jane Russell (instructed by Messrs Russell, Jones & Walker) for the Appellant
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(theIntervener)
Hearing dates: 9/10 March 2011
Introduction.
The appellant is a male homosexual. He started working for the Land Registry in April 2003 at Lytham. He did not initially reveal that he was gay, but subsequently he chose to make this public to his colleagues at Lytham. There were over three hundred employees at that office.
In October 2006 he was promoted to a post at the Coventry Land Registry. He did not tell his colleagues at that office that he was gay. He wished to reveal this fact in his own time, when he felt comfortable about doing so. He alleged that whilst at Coventry he was subject to various acts of sexual orientation discrimination and harassment from his line manager, Sharron Kay.
The Employment Tribunal found that six allegations of direct sexual orientation discrimination were proved, five of which also amounted to harassment. Six other allegations of direct discrimination, and seven of harassment, were dismissed. With respect to these matters, either the Tribunal did not find the evidence reliable, or they considered that the claimant was over-sensitive.
His employers appealed to the Employment Appeal Tribunal, essentially on the grounds that the Employment Tribunal failed to have regard to certain facts which ought to have been central to their legal analysis. It was alleged that the failure to have regard to them rendered their conclusions flawed. The facts relied upon were that the claimant had come out in Lytham and that Sharron Kay knew of this.
The EAT upheld the appeal and remitted the case to a fresh tribunal to consider the six allegations of discrimination, and the five of harassment. Mr Grant now appeals against that decision and seeks to restore the findings of the Employment Tribunal.
We are grateful for the submissions of counsel in this case. In addition to representations from Ms Drew and Mr Cavanagh QC who acted for Mr Grant and the Land Registry respectively, we also received oral and written submissions from Ms Monaghan QC, counsel for the Equality and Human Rights Commission, who were given permission to intervene in the proceedings.
The relevant law.
The relevant principles of law are not materially in dispute, and I shall deal with them briefly.
The concept of direct discrimination is found in regulation 3 the Employment Equality (Sexual Orientation) Regulations 2003:
"(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."
I draw attention to two aspects of this definition. First, the defendant must treat the appropriate comparator not only differently but less favourably. Second, the treatment must be on the proscribed grounds. Whether treatment is less favourable is to be determined objectively: see the observations of Lord Goff in R (on the application of Birmingham City Council) v Equal Opportunities Commission [1989] AC 1155, 1193. It is not enough that a claimant believes it to be less favourable.
Regulation 5 deals with harassment. It is defined as follows:
"(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."
It is to be noted that there is harassment either if the purpose of the conduct is to create the circumstances envisaged in (a) or (b), or if that is the effect of the conduct, even though not intended. Where it is the purpose, such as where there is a campaign of unpleasant conduct designed to humiliate the claimant on the proscribed ground, it does not matter whether that purpose is achieved or not. Where harassment results from the effect of the conduct, that effect must actually be achieved. However, the question whether conduct has had that adverse effect is an objective...
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HR Bytes
...developments Can an employee be harassed about their sexual orientation if they are openly gay at work? In Grant v HM Land Registry [2011] EWCA Civ 769, Mr Grant alleged that he had been harassed about his sexual orientation by his line manager at work when she asked him about his male part......
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HR Bytes - July & August 2011
...developments Can an employee be harassed about their sexual orientation if they are openly gay at work? In Grant v HM Land Registry [2011] EWCA Civ 769, Mr Grant alleged that he had been harassed about his sexual orientation by his line manager at work when she asked him about his male part......