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:
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.