Updates to sexual orientation discrimination legislation

22 Jun 2020 By Charlie Thompson

Charlie Thompson explores recent developments in this area of case law, including a biased investigation and a claim involving ‘banter’ 

The Governing Body of Tywyn Primary School v Aplin 

This Employment Appeal Tribunal (EAT) decision reinforced the principle that inference of discrimination based on sexual orientation is enough to establish such discrimination, where the contrary cannot be proved. 

The claimant, an openly gay headteacher, brought a claim for constructive dismissal and discrimination on the basis of sexual orientation against his employer. The school board had launched a disciplinary investigation into the claimant following revelations about his sex life outside of work (he had engaged in sexual conduct with two 17-year-old boys whom he met through the Grindr dating app) and ultimately dismissed him. 

There were errors and omissions throughout the disciplinary process, with the claimant not being supplied with the correct information. The school had engaged a local authority investigation officer to lead the investigation and the EAT found that the officer had proceeded with unconscious bias against the claimant, namely by proceeding on the basis that child protection issues were involved when the local authority had already confirmed they were not. 

It was concluded that the officer’s report was biased and that their conduct inferred discrimination based on sexual orientation. 

The school appealed the decision. However, the EAT found that the failures in the disciplinary process were so stark that clearly there must have been factors influencing the investigation other than the instances of lawful sex outside of work. It was therefore possible, in the absence of any other explanation, to infer that the claimant was discriminated against on the basis of his sexual orientation. 

Hoch v Thor Atkinson Steel 

In this case, an employee was successful in bringing a claim against his employer for discrimination for incorrectly perceived sexual orientation. Mr Hoch, an employee of a steel company, was subjected to racist and homophobic verbal abuse by his colleagues. The occurrences of homophobic abuse were verified by another colleague, and this was enough for the court to find discrimination on the basis of sexual orientation even though Hoch did not identify as homosexual.

This case demonstrates that an individual does not have to possess the protected characteristic for which they are claiming discrimination as it is enough to establish that the other party perceived the individual to possess the characteristic. Further, it acts as a stark warning against defences of workplace ‘banter’, which formed a significant part of the employer’s defence. 

Lee v Ashers Baking Company

A significant tension in recent years has been the incompatibility, in some cases, between certain protected characteristics – typically sexual orientation and religious belief. 

The well-known case of Lee v Ashers Baking Company looks set to continue this year. In this case, for religious reasons a bakery in Northern Ireland had refused to accept Mr Lee’s order for a cake that supported the legalisation of gay marriage in Northern Ireland. Lee won the case at first instance and the subsequent appeal, but the UK Supreme Court found in 2018 that the bakery owners had the right to refuse to accept the order on the grounds of their religious beliefs.

Lee has applied to bring a case in the European Court of Human Rights against the UK and Northern Ireland concerning the validity of the Supreme Court ruling, which he argues allows any company, its shareholders or owners to hold religious or political views that override the rights of their customers. The outcome of the application is awaited.

Charlie Thompson is senior associate at Harbottle & Lewis

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