Veitch Penny LLP - Exeter | Crediton, Devon

Case

Lisboa v Realpubs Ltd & others
Employment Appeal Tribunal - 11 January 2011

Issues

(1) Associative sexual orientation discrimination
(2) Direct sexual orientation discrimination
(3) Employment Equality (Sexual Orientation) Regulations 2003 ("the Regulations")

Facts

Mr Lisboa employed as assistant manager at the well-known gay pub, the Coleherne in Earl's Court, London. He was gay. Realpubs took the pub over with a view to turning it into a gastro pub. It sought to widen the appeal of the pub. In order to do this it had implemented a "repositioning" policy. Mr Lisboa was not comfortable with how the policy was implemented which he believed was homophobic. He argued that he was being put under pressure to implement the policy in ways he did not agree with, and eventually he resigned. He stated he was unhappy with their policy of seating customers who did not appear to be gay in prominent positions. He had also been instructed to stand outside the pub with a sign reading "this is not a gay pub". The employer also sought to change the gender balance of the employees by employing fewer men. Allegations were also made about a number of inappropriate comments and e-mails about Mr Lisboa and the gay clientele they were seeking to discourage.

He resigned and brought claims of:

(i) Direct sexual orientation discrimination on the basis that he had been subjected to homophobic comments from one of the pub's directors;
(ii) Constructive wrongful dismissal (as he did not have one year's continuity of service he could not bring a constructive dismissal claim); and
(iii) Direct discrimination on the grounds of sexual orientation due to the Claimant being put under pressure to implement and work within the pub's policy of making the pub less welcoming to gay customers than straight customers.

At the employment tribunal he was successful with the first claim, but unsuccessful in relation to the second and third. The tribunal found that the aim of the policy to broaden the appeal of the pub was lawful and that the subsequent measures to implement that policy were manifestations of that legitimate policy rather than instances of discrimination. Mr Lisboa appealed the decision at the Employment Appeal Tribunal ("EAT").

Decision

At the EAT, he was successful. The tribunal had been asked to make a judgment on whether the legitimate policy advanced by Realpubs was implemented in such a way that the old gay clientele were less favourably treated than the desired new customer base. The EAT felt that the tribunal had been wrong to focus on the commercial aims of the employer's policy without considering the effect that that policy may have when implemented. It was clear to the EAT that the gay customers had been treated less favourably on grounds of sexual orientation and as a result Mr Lisboa was also treated less favourably on that ground. He was also successful with his constructive wrongful dismissal claim. His reason for resigning was prompted by the discrimination he saw amongst customers. This was a repudiatory breach entitling him to resign.

Comments

This is one of the first decisions looking at how sexual orientation discrimination based on association will be applied. Associative discrimination was developed through case law and now incorporated into the Equality Act 2010.