The Court of Appeal has upheld an EAT decision which ruled that a man was not a victim of harassment when his sexuality was disclosed by colleagues at work.
Mr Grant worked for the Land Registry, initially at Lytham, where he was open about his sexuality to his colleagues, but when he got promoted to a job in Coventry, he decided not to disclose to colleagues that he was gay. However, his new line manager already knew he was gay and then mentioned this in conversation to another member of staff.

Mr Grant raised a Tribunal claim, alleging that he had been the victim of harassment and discrimination on the grounds of sexual orientation. The Tribunal upheld the claims but the Employment Appeal Tribunal overturned this on the basis that the Tribunal had failed to give adequate reasons for their decision. Mr Grant appealed to the Court of Appeal.

The Court of Appeal found that: “even if in fact the disclosure was unwanted, and the claimant was upset by it, the effect cannot amount to a violation of dignity, nor can it properly be described as creating an intimidating, hostile, degrading, humiliating or offensive environment.”
The Court of Appeal found that the Tribunal had also made an error in that it did not take into account the fact that Mr Grant had been open about this sexuality while at the previous office.

Innes Clark, partner and head of employment law at law firm Morton Fraser, commented: “This case seems to be authority that where an employee has made public the fact that they are gay, they cannot later make a claim of harassment based on disclosure of that fact provided that there was no intention to harass the claimant by making the disclosure. The impact of this decision will also be felt in a wider sphere as it emphasises the need for a harassment claim to be based on more than trivial upset to the Claimant.
“Employers should though be very careful in this sort of situation and always comply with the general rule as set out in the ACAS Guidelines to avoid any issues as it is very clear that outing a gay employee in different circumstances could well amount to unlawful discrimination.”

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