Discrimination: Will a conversation between two colleagues about the sexuality of a third constitute discrimination?

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Posted on 10 Aug 2011

In Grant v H M Land Registry, the Court of Appeal was asked to consider whether idle conversation between two colleagues about a third colleague being gay will be an act of discrimination.Mr Grant had initially worked at one branch of the Land Registry office and had, during his time there, been open regarding the fact that he was gay.  He was later transferred to the Land Registry office in Coventry.  At some point prior to him revealing his sexuality openly to his new colleagues, his manager, in conversation with a third colleague, mentioned Mr Grant’s sexuality.In assessing the circumstances of the manager’s disclosure, the Court of Appeal held that the manager had no ill purpose in disclosing the information and that there was therefore no direct discrimination or harassment.In its decision, the Court said that tribunals ought not to allow trivial acts to be caught by the concepts of direct discrimination or harassment.  However, the Court noted that ‘outing’ someone could amount to discrimination or harassment in other circumstances (e.g. where the employee had not been open about his or her sexuality).What does this mean for you?Every case must be dealt with on its own merits but this Court of Appeal decision has made it clear that the existence of a protected characteristic and a discussion about it by third parties (where the employee has openly let others know of the protected characteristic beforehand) will not automatically amount to discrimination or harassment.  The principle in this case could also apply to discussions about an employee’s age or a disability. There are conceivably other protected characteristics which may not be as obvious.


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