The Court of Appeal, in the recent case of Grant v HM Land Registry, gave excellent guidance on considering harassment claims.
The key facts of the case were that Mr Grant had previously worked for the Land Registry in Lytham, along with some 300 other employees. Whilst working at Lytham, Mr Grant came out to his colleagues. Subsequently, Mr Grant received a promotion to a position with the Land Registry in Coventry.
Mr Grant's new line manager, in a telephone conversation, revealed to a colleague that Mr Grant was gay. The line manager's explanation for this was that her female single colleague had found Mr Grant "pleasant" and so Mr Grant's line manager had commented that batting her eyelashes would not get her anywhere because he was gay.
Mr Grant took offence to this, in particular because he felt that it was for him to inform his new colleagues of his sexuality in his own time and he subsequently brought claims for discrimination on the grounds of sexual orientation. Although Mr Grant raised other allegations, the Court of Appeal focussed on the initial outing by his line manager.
The Sexual Orientation Regulations have been replaced by the Equality Act; however, harassment is still defined as unwanted conduct which has "the purpose or effect" of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
Much has been made in the past over the distinction between purpose and effect. It is easy to see that where you purposely violate someone's dignity, there is likely to be harassment, but what is the case where the "effect" is entirely unintended?
In this case, Lord Justice Elias stated that "When assessing the effect of a remark, the context in which it is given is always highly material," and he went on to note "Everyday experience tells us that a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker."
The Court of Appeal concluded that, because Mr Grant had made his sexual orientation public, it was unreasonable and unjustified for him to subsequently complain about the dissemination of that information. The Court's description of the meaning of harassment is clear, precise and unarguably correct and it is worth quoting in full:
"Furthermore, 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. Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment."
It is not often we get to say this, but this decision really was a victory for common sense.