Tribunal orders injury to feelings award for employee who was asked to keep her sexuality a secret

15 May 2019

Last month, an Employment Tribunal ordered an employer to pay a former employee the sum of £8,000 (plus interest), in the form of an injury to feelings award, following its earlier judgment that the employee had been directly discriminated against on the basis that she was a lesbian. This was despite the fact that there was no evidence that the discriminator was in any way prejudiced against lesbian employees.  
 

McMahon v Redwood TTM Limited and Pilling

Ms McMahon, a Quality Control Manager, began working for Redwood in May 2017. During her first week of employment, the managing director, Mr Pilling, requested her not to disclose her sexual orientation to the wider business. Mr Pilling said that this was because the business’ owner was ‘old school’ and that no other gay people were employed by the company at the time.

As a new starter, Ms McMahon felt she had to comply with Mr Pilling’s request, which she described during the Tribunal hearing as ‘odd and uncomfortable’, as she was mindful of the potential repercussions non-compliance might have on her job.

Ms McMahon alleged that Mr Pilling’s request to keep her sexuality a secret caused her to want to cancel her ticket to the company’s Christmas party, claiming that she would feel uncomfortable attending a social event where she could not discuss elements of her private life.

Mr Pilling denied the allegations against him, contending that he had never made such a request and that the alleged conversation never took place. The Tribunal, however, believed Ms McMahon’s version of events.  

Redwood made a number of redundancies in December 2017, which included Ms McMahon’s role. Following the termination of her 7-and-a-half month long employment, Ms McMahon brought several tribunal claims against the company, including for automatically unfair dismissal for a health and safety reason and for making a protected disclosure, as well as for direct and indirect discrimination. The majority of Ms McMahon’s claims were unanimously rejected by the Tribunal, however, it did find in her favour in respect of her complaint that Mr Pilling had asked her not to reveal her sexual orientation at work. The Tribunal found that Mr Pilling’s request amounted to direct discrimination on the grounds of sexual orientation, and it concluded that Mr Pilling would not have made such a request of one of the company’s heterosexual employees.

 

Comment

This case highlights the importance of treating employees equally and ensuring there is no differentiation between individuals based on their protected characteristics. In the above case, the Tribunal commented that it did not find Mr Piling to be homophobic in any way, and it was perhaps the case that his request to Ms McMahon was just ill-considered, and that its possible impact had not been thought through. Nonetheless, Mr Piling’s request did amount to discrimination.

This case underlines the importance of employers ensuring that their workforce is aware of what can and cannot amount to discrimination, as well as having and enforcing an equal opportunities policy. Additionally, it is important for employers to be aware that it is not enough for them just to have the policy – they must also provide regular staff training on its content. Employers should not require employees to divulge personal information if they are not comfortable doing so but, at the same time, it is important that employees are not be prevented from discussing aspects of their private lives in a way that could amount to direct or indirect discrimination.

 

About the author

Eugenie often advises individuals in difficult situations, including those facing redundancy or having suffered discrimination.  She acts for a mixture of corporates and private individuals. Eugenie’s experience includes advising on dismissals, negotiating settlement agreements, advising on contractual disputes, including the enforceability of post-termination restrictions and drafting employment contracts and staff handbooks.

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