Grant v HM Land Registry [2011] EWCA Civ 769

In brief

GRANT LOST ON THE DISCLOSURE COMPLAINTS: the Court of Appeal held that where the claimant had already chosen widely to reveal his sexual orientation, the two disclosure incidents could not amount to direct discrimination or harassment — the effect "cannot amount to a violation of dignity". The case was remitted "to another tribunal to consider the other four complaints only". Grant v HM Land Registry [2011] EWCA Civ 769 confirms that the correct comparator in a sexual orientation discrimination claim must mirror the claimant's actual circumstances, including the extent to which the claimant has themselves disclosed the protected characteristic. Where a claimant has voluntarily made his orientation generally public, a colleague who innocently refers to that fact does not cause actionable detriment, nor does such a reference meet the objective threshold for harassment.

Key provisions

• Grant-P1 — Comparator must share all material circumstances: For direct discrimination, the comparator must be in circumstances not materially different from the claimant's. Where the claimant has made their orientation publicly known, the comparator is someone who has equally made their information public.
• Grant-P2 — No detriment where characteristic is self-disclosed and generally known: Where a claimant has voluntarily made their protected characteristic generally public, a grievance about others referring to that fact is unreasonable and unjustified.
• Grant-P3 — Harassment threshold — humiliating environment must be objectively justified: The effect of conduct must reasonably be considered to create an intimidating, hostile, degrading, humiliating or offensive environment. Trivial acts do not meet this threshold.
• Grant-P4 — Innocent disclosure of publicly known information is not discrimination: A defendant who innocently discloses a claimant's protected characteristic where it is already generally known cannot be held liable for discrimination.
• Grant-P5 — Privacy and discrimination are distinct — Article 8 is not a surrogate: Discrimination law cannot be used as a surrogate to enforce privacy rights. Article 8 ECHR rights may inform construction but do not automatically convert a privacy violation into a discrimination detriment.
• Grant-P6 — Tribunal must consider all material facts: A tribunal that fails to consider a centrally material fact commits a legal misdirection.

When relevant

When an employer questions whether an employee qualifies for gender reassignment protection, or when medical status is used as a gating criterion.