Austin v Samuel Grant (North East) Ltd
Date added: 2 August 2012
sexual orientation discrimination | religion or belief
discrimination | harassment | victimisation
In this tribunal decision, an employee who suffered workplace
abuse successfully claimed sexual orientation and religion or belief harassment,
despite being heterosexual and not declaring his religious beliefs.
This case is a good example of how an employee need not,
under the Equality Act 2010, possess a particular protected characteristic
to bring a discrimination claim.
Employers should ensure, via training and policies, that
inappropriate conversations do not take place in the workplace.
Where an employee submits a formal grievance, the employer
should investigate it properly and not punish the employee for raising his
or her complaints.
On 13 September 2010, Samuel Grant (North East) Ltd employed Mr Austin as a
sales executive. There were two other sales executives, Mr Kozlowski and Mr
Laidlaw, who was also the company’s managing director. Mr Laidlaw had
agreed with Mr Kozlowski’s suggestion that, on Mr Austin’s first day at work, Mr
Kozlowski would pretend that he had Tourette’s syndrome. Mr Austin’s
evidence at the tribunal hearing was that he had suspected that it was a joke,
but that Mr Kozlowski’s “performance” had been such that he had doubts as to
whether or not Mr Kozlowski actually had Tourette’s syndrome.
At the tribunal hearing, the company accepted that one or both of Miss
Laidlaw (who appears to be a relative of Mr Laidlaw, and also worked at the
company) and Mr Kozlowski had asked Mr Austin whether or not he liked football
and, when they had been told that he was not interested, said “you’re gay
then”. The company’s evidence was that this expression is “quite normal in
North East England football circles”, and is treated as a joke. Mr Austin’s
evidence was that Mr Laidlaw and Mr Kozlowski had called him “gay and a
homosexual” throughout his employment, which they denied apart from the one
occasion on which Mr Austin had been asked about football.
Mr Austin gave evidence that Mr Laidlaw and Mr Kozlowski had referred to him
as a “crafty butcher”, which is a euphemism for male homosexuals. Mr Austin
also alleged that Mr Kozlowski had “equated him with being gay” because Mr
Austin helps with household chores at home, whereas Mr Kozlowski does
not. Mr Austin said that he has a particular interest in the arts and,
whenever he had spoken about a television programme on an arts subject, this had
been taken by Mr Laidlaw and Mr Kozlowski as further evidence of his
homosexuality. On one occasion, Mr Austin alleged, he had been accused of
being a homosexual for watching a documentary about Salvador Dali.
The tribunal was presented with examples of emails that Mr Laidlaw had sent
to members of staff. Two of these were sexist, and one (headed
“coloured-folk”) was racist. In January 2011, Mr Austin fell seriously ill
with swine flu. On his return, three colleagues, including Mr Laidlaw, were
wearing what appeared to be surgical masks, which had been supplied by Mr
Mr Laidlaw, Mr Kozlowski and two other members of staff are Jehovah’s
Witnesses. Mr Austin’s evidence was that Mr Laidlaw and Mr Kozlowski would
“invariably” turn conversations to their religion, and “if an opposing opinion
was given by the listener, he or she was referred to as a pagan”. Mr Austin
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”. Mr
Austin considered that these religious beliefs were not suitable for discussion
in an office environment, and alleged that inappropriate religious and
homophobic statements had been made weekly until his dismissal. Mr Laidlaw
and Mr Kozlowski denied that they promoted or mentioned their religious beliefs
unless they were asked a question by a member of staff.
On one occasion in February 2011, Mr Austin left his computer to make
tea. When he came back, he was angry because, he alleged, his colleagues
had put pornographic images on his computer.
Mr Austin’s evidence was that, by this point, he had become very distressed
about his treatment and humiliation by Mr Laidlaw and Mr Kozlowski. He met
the HR director and, on 5 April 2011, the HR director met with Mr Laidlaw and
the company’s owners to discuss Mr Austin’s grievance and “capability and
future” at the company. Neither Mr Laidlaw nor Mr Kozlowski was suspended,
and on 10 May 2011, Mr Austin’s grievance was rejected. The HR director
found that, although there had been jokes and banter, none of the employees
interviewed by him had found any of it offensive or derogatory and said that Mr
Austin had joined in. Mr Austin’s appeal was rejected on 25 May
On 18 March 2011, Mr Laidlaw had told Mr Austin that, unless his sales
figures improved, he would “have to let him go”, although no specific objectives
were set. On 15 April 2011, Mr Austin was summarily dismissed. He
brought claims for harassment on the grounds of sexual orientation and religion
or belief. He also claimed victimisation, arguing that the reason for his
dismissal was his grievance about being bullied.
The tribunal preferred Mr Austin’s evidence to that of the company’s
witnesses, which was “unconvincing and contrived”. None of the company’s
witnesses said that they had heard any homophobic comments by Mr Laidlaw or Mr
Kozlowski except the football “joke”, but all of them had heard that
one. The tribunal found that there had been collusion with the employees in
the period between 5 April 2011 (when the company was aware of Mr Austin’s
allegations) and 3 May 2011, when the HR director returned from holiday and
began his grievance investigation.
The tribunal found that there is a culture in the company of religious
discussion and emails of a sexist and racist nature. This conduct “is led
by the managing director, who sets the tone of the culture...by his own
behaviour and by accepting the behaviour of others”. The tribunal inferred
from the evidence that the terms “gay”, “homosexual” and “crafty butcher” had
been used by Mr Laidlaw and Mr Kozlowski on numerous occasions, and were not
one-off remarks. The pornography incident had “obviously” taken place as Mr
Austin had described it.
The tribunal held that Mr Austin had suffered both sexual orientation and
religion or belief harassment. Although Mr Austin is not homosexual, his
treatment by Mr Laidlaw and Mr Kozlowski fell within the relevant definition in
the Equality Act 2010. The conduct was unwanted and was intended to violate
Mr Austin’s dignity. Although Mr Austin had not informed the tribunal of
his own religious belief, if any, the religious conversations in the office had
the purpose and effect of creating an adverse environment for him, and he could
not simply ignore them.
The tribunal also held that Mr Austin had been victimised by his dismissal,
which was not carried out in accordance with the company’s disciplinary
procedure. Mr Laidlaw knew of Mr Austin’s complaint and that it could, with
a proper investigation, have been proved. The tribunal found that the
company had failed to show that Mr Austin’s performance was less satisfactory
than Mr Kozlowski’s (who was not dismissed), and held that the reason for the Mr
Austin’s dismissal was his grievance.
The tribunal awarded Mr Austin compensation of nearly £44,000. It also
made a recommendation that the company, within six months, update its
discrimination policies to take account of the Equality Act 2010, and ensure its
directors and managers obtain diversity training from a reputable
Get more information on religion or belief discrimination in the XpertHR
FAQs section, which answers the following questions:
- Get more information on sexual orientation discrimination in the XpertHR
FAQs section, which answers the following questions: