United Kingdom Employment Appeal Tribunal

The primary facts

(i) On 7 December the General Manager, Jimmy Sydney, told the Claimant that he had been instructed by Mr Heap to display a board outside the pub saying ‘this is not a gay pub’.  The Claimant told the ET in evidence that he was shocked by the instruction and did not comply with it.  Instead he wrote a notice along the lines “under new management… friendly staff”.  We note that in his evidence Mr Heap denied giving the instruction to Mr Sydney as relayed by the Claimant.  The ET did not believe Mr Heap.  They found that he did ask that a sign be displayed saying that it was no longer a gay pub, but after discussion agreed that a message in that form was not appropriate and accepted the Claimant’s formulation (Reasons, para 26).

(ii) On 8 December Mr Heap replied to an e-mail from Mr Zimmerman, an advisor to an investment company with an interest in Realpubs (and formerly Fourth Respondent to this claim).  In that reply Mr Heap said, among other things, “management are hitting the streets and making sure everyone knows about us and that we are no longer an exclusively GAY pub.  We are barring ‘over the top’ old customers but this needs to be done right!!....” (para 28).

(iii) The policy of Realpubs, circulated by Mr Heap and Mr Pring (a director and formerly Second Respondent to this claim), was to encourage staff to seat customers or groups of customers who did not appear to be gay in prominent places in such a way that they could be seen from outside the pub.  The ET did not accept that there was a policy to conceal gay customers from view (para 36).

(iv) Consistent with that policy, when Mr Heap visited the pub at lunchtime with his family on Sunday 14 December he deliberately positioned himself at a table within sight of the outside (para 30).

(v) On 19 December two gay customers were engaging in a display of intimacy, the extent of which differed on the conflicting accounts in evidence of the Claimant and Mr Heap.  The ET made no express finding on that dispute of fact, finding neither witness entirely satisfactory on the point, but they did accept the Claimant’s evidence, disputed by Mr Heap, that the latter referred to the customers as “queens” (paras 31-32).

(vi) On the same occasion, the Claimant stated in evidence, Mr Heap said “Charles is gay but another kind of gay.”  Mr Heap denied making that remark but the ET accepted the Claimant’s evidence. 

(vii) After Realpubs took over the sex balance amongst staff members changed.  It was Realpubs policy to have a more even balance between the sexes.  At the re-launch on 5 December there were 9 male members of staff: 5 female and 3 male managers.  By 5 January 2009 the numbers of male and female non-managerial staff were even at 6 each.  5 male members of staff had left during that month; 2 were dismissed on grounds of unsatisfactory performance (para 42).

(viii)  There was, in the Coleherne days, a male member of the bar staff called Ricky.  He was not gay, but was much admired by many of the regular customers.  Mr Heap was not comfortable with Ricky’s appearance and dress; he left the employment.  There was an evidential dispute as to the reason for his leaving.  The Claimant believed he was “got rid of” because of his attractiveness to the gay clientele; Mr Heap said that he left to play Australian Rules football in his native Australia.  The ET felt unable to make a finding as to precisely what brought about his departure (para 43).

(ix) On one occasion, contrary to Mr Heap’s denial, he said to the Claimant, apparently in jest, that his fellow Assistant Manager “walked too camp.” 

We shall hereafter refer to those incidents by the same numbering. 

The claims

(1) Comments by the Respondent(s) specifically directed at the Claimant on grounds of his sexual orientation; what the ET referred to as the ‘conventional’ claim (para 52 and following) and,

“48. Attractive and persuasive as they were, we are unable to accept Mr Cooper’s submissions on this part of the case.  We do not doubt that the Claimant perceived anti-gay prejudice on the part of the organisation and in particular the individuals about whom he complains. In the case of Mr Heap, he had understandable reasons for that perception.  But the law does not legislate against prejudice: it offers a remedy only where adverse treatment on a proscribed ground is made out.  We find that nothing was done to make the pub unwelcoming to gay customers or less welcoming to gay customers than other patrons.  Nor was any instruction given to that effect.  Realpubs are a hard-headed commercial enterprise.  The last thing in the minds of its directors was to alienate their established customers.  Their objective was to broaden the appeal of the pub, increase the numbers coming in and widen its clientele.  If that aim had been achieved (as apparently it has not), the inevitable consequence would have been a ‘watering down’ of the gay element within the client base.  But a reduction in the percentage of gay customers would not have amounted to an exclusion of gay people or less favourable treatment of them, even if some established customers might have disapproved.  Rather it would have been the natural fulfilment of the unobjectionable ‘re-positioning’ strategy.  And once it is accepted that the strategy was lawful, it seems to us that measures such as redressing the gender imbalance among bar staff (whether or not that entailed sex discrimination) and ‘showcasing’ families or mixed-sex groups by seating them prominently in the pub are not properly seen as instances of discrimination against gay customers but rather as manifestations of the legitimate policy of seeking to ‘sell’ the pub to a wider public.  (Of course matters would have been different had there even evidence of, for example, an instruction to reserve the more comfortable or attractive tables or seating areas for non-gay customers or to enforce any form of segregation by reference to sexual orientation.  But that is not what happened.)

49. There certainly was evidence of a policy to exclude some gay customers.  Mr Heap made it clear in his evidence that Realpubs would not tolerate offensive behaviour and would take steps to ensure that miscreants did not return.  But that was a policy aimed at managing misconduct, not disadvantaging individuals because of their sexuality.  We are quite satisfied that the reference in Mr Heap’s email of 8 December 2008 to barring ‘over the top’ old customers alluded to those who, by illegal, outrageous or otherwise unacceptable behaviour, had contributed to the ‘fallen’ image of the pub.  We reject Mr Cooper’s suggestion that ‘over the top’ merely meant ‘camp’. 

50. The instruction by Mr Heap to the Claimant to warn the amorous gay couple would have constituted an instruction to discriminate had we found that a corresponding instruction would not have been given in the case of a heterosexual couple but we are unable to make such a finding.  Indeed we are confident that, in such circumstances, Mr Heap’s reaction would have been the same.  In this context we have noted the unchallenged testimony of Ms Christian that Realpubs operate an ‘anti-petting policy’ across their entire chain of pubs.

51. For all of these reasons, we find that the Wethersfield v Sargent claim, sincere as it is, is unfounded.”

“59. The complaint of constructive dismissal (as a claim under the contract jurisdiction as well as an element of the unlawful discrimination claim) fails.  We are in no doubt that the detrimental treatment which we have identified constituted a repudiation of the Claimant’s contract of employment.  Had he resigned in response to it, his complaint of constructive dismissal would have succeeded.  We find, however, that the true reason for his resignation was not the offensive treatment by Mr Heap but the Claimant’s mistaken perception that Realpubs were a homophobic organisation in pursuit of a homophobic policy to disadvantage the Coleherne’s gay clientele.  Since he did not resign in response to the repudiation, he fails to establish a constructive dismissal.”

The appeal

Wethersfield v Sargent

Constructive dismissal

Disposal