The Employment Appeal Tribunal (EAT) has recently ruled that Realpubs Limited’s re-positioning of “The Coleherne”, claimed to be London's first gay pub, as a gastropub for a wider clientele was undertaken in a way discriminatory to staff. Although the policy of converting the pub style was legitimate, it was done in a way that treated the gay customers less favourably on the ground of their sexual orientation. An openly gay employee who chose to resign rather than be part of the policy was found to have been discriminated against on the ground of his sexual orientation.
The pub’s trade had been declining when Realpubs took it over. They intended to change the pub's image and widen its clientele. In doing this, they told the pub's Manager to put up a board saying "This is not a gay pub" and to encouraged the waiters to seat apparently non-gay customers in conspicuous positions. The company also moved to change the gender ratio of the pub's waiting staff, which had been all male. This led to the departure of five staff and soon half of the pub's waiters was female. A director also made some homophobic comments which also gave rise to a separate direct discrimination claim.
Faced with this overall situation Mr Lisboa, a waiter, resigned, saying he would have nothing to do with the process. As it happens it seems the policy was unsuccessful and the pub’s clientele remained about 90% gay.
Instructing an employee to implement a policy that is itself discriminatory (e.g saying don’t let in any Africans) is unlawful discrimination against the employee, even if the employee was not, in the example, of the same race as the customers to be discriminated against. In this case, the EAT found that the policy of seeking to widen the pub's clientele was legitimate. However, the EAT said that the real issue was whether, looking at the overall picture, gay customers might reasonably feel that because of the steps actually to be taken to implement the policy, they were disadvantaged compared with non-gay customers. The answer was clearly that gay customers were treated less favourably on the ground of their sexual orientation.
As a result Mr Lisboa who had been asked to help in taking those steps had also been treated less favourably on the ground of sexual orientation.
Employers need to be careful how they deliver a business plan aimed at changing the profile of customers. So, deciding that customers are "too male" (or "too female") could lead to problems such as Realpubs hit if the outward manifestation of the plan were to be to treat customers with a “protected characteristic” less favourably than others. Any employee required to carry out the plan may be entitled to claim that he or she is the victim of unlawful discrimination.
Also note that the outcome in the Realpubs case would have been the same even if Mr Lisboa who resigned had not himself been gay.
