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EAT holds that employer atempting to make a pub less attractive to gay customers discriminated against a gay employee

14 January 2011 #Employment

In Lisboa v Realpubs Ltd and others the EAT held that a policy of trying to rebrand a pub where the Claimant worked to appeal to non gay customers constituted direct discrimination against a gay employee who was not comfortable with implementing such a policy.

Mr Lisboa`s employer bought the pub where he worked and attempted to change its image so that it would appeal to a wider section of the public than solely the gay community, which were its current clientele. Mr Lisboa was openly gay.
Some of the attempts to make the pub less attractive to the gay community included:

  • A suggestion that a board should be put outside the pub saying "this is not a gay pub". This was not actually implemented but a new sign was put up saying "under new management... friendly staff";
  • Encouraging staff to seat customers who did not appear to be gay by the windows so they could be seen by members of the public walking past; and
  • Hiring more women to balance out the staff into an almost equal split of men and women.

The ET found that the policy of rebranding was lawful and so could not give rise to a direct discrimination claim. The EAT disagreed stating that the key question was not whether the aim of the policy was lawful but whether the policy had been implemented in such a way that the gay customers were treated less favourably on grounds of their sexual orientation than straight customers. It held that they were, on the basis that that instructions to discriminate against customers could constitute less favourable treatment of an individual (in this case Mr Lisboa).

The EAT also found that the implementation of the policy was a repudiatory breach of contract, entitling the employee to resign and claim constructive dismissal.

Although this facts of this case may be unusual, it provides a reminder to employers to think through carefully any changes it intends to make to the workplace, and to ensure that any instructions given to employees around such changes do not discriminate.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
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