Employer discriminated against employee by asking her to keep her sexuality a secret

08-07-2019

Authors: Cian Beecher, Maille Brady Bates and Niamh Fennelly

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In the recent case of McMahon v Redwood TTM Limited and Pilling, an UK Employment Tribunal ordered the employer to pay a former employee the sum of £8,000 (plus interest), in the form of an injury to feelings award.

The award followed the tribunal’s earlier judgment that the employee had been directly discriminated against on the basis of her sexual orientation. This was despite the fact that there was no evidence that the employer was prejudiced against her or her sexual orientation.

Background

The claimant, a quality control manager, began working for Redwood in May 2017. The claimant told the tribunal that, during her first week of employment, the managing director requested her not to disclose her sexual orientation to the wider business. She said that the managing director informed her 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, the claimant felt she had to comply with his request, which she described as ‘odd and uncomfortable’, as she was mindful of the potential repercussions non-compliance might have on her job.

The claimant alleged that the managing director’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. The managing director 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, favoured the claimant’s evidence in this regard.

The company made a number of redundancies in December 2017, which included the claimant’s role. Following the termination of her 7-and-a-half month long employment, the claimant brought several claims against the company, including a claim of automatic unfair dismissal for a health and safety reason and for making a protected disclosure, as well as direct and indirect discrimination claims.

Decision of the Employment Tribunal

The majority of her claims were unanimously rejected by the tribunal, however, it did find in her favour in respect of her complaint that the managing director had asked her not to reveal her sexual orientation at work. The tribunal found that the managing director’s request amounted to direct discrimination on the grounds of sexual orientation and concluded that the managing director would not have made such a request of one of the company’s heterosexual employees. This was the case even though the tribunal was satisfied that there was no evidence that the employer was prejudiced against her or her sexual orientation.

Advice to employers

While this is a UK case and references UK concepts such as injury to feelings damages, the case nonetheless highlights the risks involved in treating employees differently on the basis of their sexual orientation (or any other protected ground). It is also important to be aware that employees are protected from discrimination irrespective of their length of service – there is no minimum discrimination service requirement to bring a discrimination claim before the Workplace Relations Commission.

Employees should not be required to divulge personal information if they are not comfortable doing so, but equally they should not be precluded from discussing aspects of their private lives if others, who do not share their protected characteristic, can freely discuss theirs.

Employers should have an up-to-date equal opportunities policy in place, which details the employer’s approach to equal opportunities and sets out what is and is not acceptable behaviour. Management should lead by example in promoting the importance of treating everyone in the workplace with dignity and respect.

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