Austin v Samuel Grant (North East) Ltd – employee discriminated against when called “gay” because he did not like football

In the latest of our posts on Employment Tribunal cases from the case archive, we take a look at the case of Austin v Samuel Grant (North East) Ltd ET/2503956/11. In this case an Employment Tribunal found that an employee had been harassed n the grounds of his sexual orientation when he was referred to as “homosexual” and “gay” by colleagues because he had told them he didn’t like football.

Background facts in Austin v Samuel Grant (North East) Ltd

Mr Austin, who is heterosexual, commenced employment with Samuel Grant (North East) Limited (“Samuel Grant”) as a sales executive on 13 September 2010. In this position he worked with two other sales executives, Mr Kozlowski and Mr Laidlaw, who was also the company’s managing director.

During Mr Austin’s employment with Samuel Grant he was subjected to the following conduct by Mr Kozlowski and Mr Laidlaw:

• Upon Mr Austin stating that he did not like football, Mr Kozlowski told him “you’re gay then”
• Mr Austin was called “gay and a “homosexual” throughout his employment by Mr Kozlowski and Mr Laidlaw
• That Mr Kozlowski and Mr Laidlaw referred to Mr Austin as a “crafty butcher”, a euphemism for male homosexuals
• That Mr Kozlowski and Mr Laidlaw interpreted Mr Austin’s helping with household chores and his interest in the arts as further evidence of his homosexuality

Mr Austin also alleged that Mr Laidlaw and Mr Kozlowski, who are Jehovah’s Witnesses, would regularly turn conversations to their religion, and that colleagues who disagreed with them on religious matters were isolated and referred to as “pagans”. Mr Austin also alleged that he had been informed that “come Armageddon, the Jehovah’s witnesses would be born again in perfect health, but everybody else would perish.”

On one occasions in February 2011 Mr Austin left his computer to make a cup of tea. When he returned to his desk he found that colleagues had changed his desktop background to pornographic images.

Mr Austin complained about the treatment he was subjected to and, on 5 April 2011, the HR Director met with Mr Laidlaw and the company’s owners to discuss Mr Austin’s grievance as well as Mr Austin’s “capability and future” at the company. Neither Mr Laidlaw nor Mr Kozlowski was suspended and Mr Austin’s grievance was dismissed; his appeal against the grievance outcome was also dismissed.

On 28 March 2011 Mr Laidlaw informed Mr Austin that he would be dismissed if his sales figures did not improve, although Mr Laidlaw did not set Mr Austin any targets. On 15 April 2011 Mr Austin was summarily dismissed by Mr Laidlaw.

Mr Austin brought claims to the Tribunal for sexual orientation-related harassment, religious belief harassment, and victimisation (arguing that the reason for his dismissal had been his grievance about being bullied).

The Employment Tribunal’s decision in Austin v Samuel Grant (North East) Ltd

The Employment Tribunal found that Mr Austin had suffered both sexual orientation and religion or belief harassment, finding that Mr Laidlaw and Mr Kozlowski’s conduct was unwanted and was intended to violate Mr Austin’s dignity. The Tribunal also held that, despite Mr Austin not being homosexual, this was not required under the Equality Act 2010 and Mr Austin’s ‘perceived’ homosexuality meant that he was protected under the Equality Act.

The Employment Tribunal also held that Mr Austin had been subjected to victimisation by being dismissed, as the Tribunal held that his grievance was a ‘protected act’ and that he had been dismissed because he had undertaken that protected act.

The Tribunal awarded Mr Austin almost £44,000 as compensation for the harassment and dismissal. The Tribunal also made a recommendation that Samuel Grant update their equality policies and that their employees undergo equality & diversity training.

Our solicitors’ comments

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case is a good example that, even if an employee does not possess a particular protected characteristic, it does not stop them from being potentially discriminated against, harassed, or victimised because of said characteristic; in this case Mr Austin was not homosexual but, because he was perceived to be homosexual, he was ‘covered’ by the protected characteristic of sexual orientation.”