Two bites of the apple- limitation in professional negligence cases
The latest Employment Tribunal statistics show a rise of almost 20% in sexual orientation discrimination claims. Whilst the volume of sexual orientation discrimination claims remains low compared to sex, race, disability and age discrimination claims, it has increased every year since 2003 when Sexual Orientation discrimination was first made unlawful. There is every reason to believe this trend will continue, particularly as the law becomes better known. The cases often make the headlines and therefore there is a real risk of adverse publicity for employers who are caught out.
With only very limited exceptions, the law prohibits direct and indirect discrimination, harassment and victimisation. As usual, there is no cap on possible compensation; injury to feelings awards can be made; and an employer can be liable for the discrimination of one employee against another. Under a change introduced by the Equality Act, employers can also be liable for the harassment of employees by third parties (such as customers or clients) although the Government has recently announced it is reviewing these new rules on third party harassment. Legal protection is given to a wide range of individuals, including not only employees, but also (for example) job applicants, partners, agency workers, the police and other office holders. As is also usual in discrimination law, the territorial scope of the law is very wide and will cover many international employees.
Three illustrative cases
Our first case, Thomas Sanderson Blinds v English, was notable because the claimant brought a claim relating to homophobic harassment by colleagues even though in fact he was heterosexual and his "tormentors" (most of whom were found by the Tribunal to be friends of his) knew this. The alleged harassment began when a colleague discovered the Claimant had attended boarding school and lived in Brighton. There was no question of it being a case of mistaken belief or perception discrimination, although such claims are now possible. Equally it was clear that the Claimant had been the victim of offensive homophobic "banter", in meetings and in the company newsletter. The Court of Appeal ruled that meant the Claimant was allowed to bring a sexual orientation discrimination claim to the Tribunal.
However, when the claim was eventually heard, it failed, largely because the Claimant himself was found to have participated in similarly offensive and inappropriate conduct. For example, he wrote articles for the newsletter that the Tribunal said were "riddled with sexist and ageist innuendo". Consequently most of his complaints failed, and whilst in one case the Tribunal decided the Claimant had suffered sexual orientation harassment, that claim had been brought out of time. Although the end result was a good one for the employer, the litigation lasted well over four years and involved three appeal hearings, not to mention unflattering publicity for the employer.
By contrast, Lisboa v Realpubs, illustrates the link between sexual orientation discrimination against employees, and the equivalent rules on discrimination against customers. Where a business operates a discriminatory policy towards customers, it will likely be discriminating against its employees too. The employer’s business was the acquisition of failing pubs and their conversion into "gastropubs". It bought a run-down pub in West London that had hitherto be known as a "gay" pub and set about changing its image to attract new customers from outside the LGBT community. The way the employer went about this caused him offence (for example they asked him to place a sign outside the pub proclaiming it to no longer be a gay pub and to position families near the windows) and led him to resign claiming constructive dismissal. However, in its judgment the employer’s conduct was unlawful. The Tribunal held that the Claimant was entitled to take offence and resign in protest.
Finally, Bennett v Bivonas, shows the increasingly robust attitude of employment judges towards homophobia in the workplace. The employer was a law firm. The Claimant succeeded in a constructive dismissal and sexual orientation discrimination claim after discovering a note from one of the partners saying he was giving work to his "batty boy mate". The Tribunal concluded this was a serious professional slur, the implication being that work was being referred because of sexual orientation, rather than proper reasons based on ability.
How to minimise the risk of a claim for sexual orientation discrimination:
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