A gay Royal Navy officer who was compelled to come out against his will because of a discriminatory accommodation policy was indirectly discriminated against, a tribunal has ruled.
The Bristol tribunal determined that the Royal Navy had not offered a sufficient defence and that its removal of substitute service housing – a particular type of housing offered to single and unaccompanied people in the Army and Navy – was discriminatory and put lesbian, gay and bisexual (LGB) personnel at a “special disadvantage”.
The tribunal ruled that the Ministry of Defence's (MoD) “failures to follow [their own] sound policies” pointed to a “serious gap” between the requirements of the policies and “the level of understanding among staff operating them”.
XA was employed as a Royal Navy officer in 2003. In 2016, he was assigned to Bristol and was due to be assigned to a rural location with an MoD base. The tribunal heard that Navy Command Legal intervened over concerns about “potential diversity issues” the situation would present.
The tribunal heard that XA raised concerns about the accommodation with his career officer, who was unaware of the intervention at the time, and was told: “It shows you can suffer, so you have the leadership potential – that is the material the board looks for.”
On 23 May 2017, having been assigned instead to Bristol, XA applied for substitute service single living accommodations (SSSA). The new guideline only allowed him to accept one accommodation offer; his preference was for the city centre, which he told the tribunal would “allow him to be closer” to other people from the LGBTQ+ community.
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On 28 June 2017, XA was told accommodation was available in Bradley Stoke, a new town created “with families in mind”.
On 4 July, XA viewed the accommodation and raised concerns with the housing representative, including that there was an equality aspect to them as only people with children or parental responsibilities could live there, and the tribunal said the accommodation offer “failed to take proper account of his [XA’s] circumstances”.
He then talked about the lodging with a direct superior, who then spoke with the commanding officer. The tribunal heard this meant XA had to explain his sexual orientation for the first time to the senior officers in the team where he had been working for some time, which he found “difficult”.
Because there were no other options, he moved into the accommodation offered on 11 July, and his Bristol assignment started on 17 July. XA then sent an email flagging the accommodation issues to his superiors, which were forwarded without XA’s consent to other officers, revealing his sexual orientation against his wishes.
He admitted to the tribunal that having to disclose his sexual orientation to a sizable portion of the staff, and the breaches of confidentiality, made him feel “sub-human and not deserving of the consideration that others would receive”.
He submitted a tribunal claim on 1 March 2018 and an investigation report into his complaint was issued in December 2018.
On 11 February 2019, the Royal Navy applied for the employment tribunal to be struck out. Then, on 30 April 2019, the Royal Navy’s decision body dismissed the complaint of indirect discrimination. XA appealed the decision on 17 June 2019, but on 3 July it was dismissed.
The tribunal found that XA was “treated differently” to other officers and that this treatment was discriminatory because it was “based on his protected feature”. It also highlighted that the MoD's system is unchanged and that XA is likely to run into the same problems when he wants to find new housing in a few months’ time.
It also stated that the Royal Navy failed to justify the change and that no business need had been demonstrated. “We cannot identify the legitimate aim, beyond cost savings,” the panel added.
Employment judge Maratha Street said: “LGB service personnel were disproportionately affected by the loss of choice of substitute service accommodation imposed on those entitled to single substitute service accommodation and were disadvantaged by the lack of choice. That was a particular disadvantage.”
The Royal Navy had maintained that the decision to alter its housing policy in 2016 was made because of financial constraints. The judge disagreed, saying that "no business need has been proven". It was determined that because members of the LGB community are "less likely to be married or in a civil partnership than heterosexual service personnel", the policy would "have a disproportionate effect on the group of service personnel who identify as gay".
XA was awarded £46,959 in compensation, including £25,200 for injury to feelings and £8,000 in aggravated damage.
Andrew Willis, associate director of legal at Croner, said cases like this were a crucial reminder for businesses to actively foster a workplace that fosters true equality and inclusion at all levels. “It’s beneficial to conduct regular training sessions and reviews of workplace policies and practices to ensure this is achieved,” he said, adding that carrying out an equality effect evaluation of every policy can help to ensure that “situations such as this do not arise” as well as “creating an even footing for all employees”.
Toby Pochron, employment director at Freeths, said the case highlighted the need for policies that don’t just pay lip service. “An organisation can have the best, most well-structured policies and procedures in the country – but if the staff on the ground don’t know about them or follow them then [that is] worse than having nothing at all,” said Pochron. “If the reality is that you have spent time and effort in creating policies but staff just disregard the terms, all your organisation is doing is paying lip service to the regulations.”
The Royal Navy has been contacted for comment.