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Harassment and Discrimination

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Harassment and discrimination based on sexual orientation

A male homosexual employee at HM Land Registry had openly come out to his colleagues at Lytham. He was later promoted to a position at Coventry but did not immediately disclose his sexual orientation. He complained that he was subject to a number of instances of discrimination and harassment by a line manager who had made several references to his sexual orientation.

The relevant law is to be found in the Employment Equality (Sexual Orientation) Regulations 2003, reg 3:
‘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…’

Under regulation 5, there is harassment if
‘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.’

The Court of Appeal, upholding the decision of the Employment Appeal Tribunal referred the case back to the Employment Tribunal because it had ‘failed to have regard to a crucial fact, namely that the claimant had chosen to reveal his sexual orientation at Lytham’ and the line manager at Coventry had been aware of that.

Lord Justice Elias, giving the judgment of the appeal court in Grant v HM Land Registry, did add that ‘gay persons should be able to reveal their sexual orientation on a confidential basis, and that to break that confidence would be likely to involve a breach of Article 8 [Human Rights Act 1998]and might, depending on the circumstances, also involve sexual orientation discrimination’.