Over four decades the Coleherne Public House in Earls Court, London developed a national and international reputation as London's first 'gay pub'. Realpubs bought the premises. Realpubs own and operate 'gastropubs and their business model is to buy failing pubs and reposition them as gastropubs, offering good food and drink to all sections of the community.
In September 2008 when Realpubs acquired the Coleherne it was then in decline. The premises underwent refurbishment and were re-launched as the Pembroke Arms, opening to the public on 5 December 2008.
The Claimant in this case was an openly gay man. His working life has been spent in the hospitality industry. Between 2003 and late 2008 he worked as General Manager of a gastropub in Ealing. In late November 2008 he was interviewed by Realpubs' Operational Manager for a post in the Pembroke Arms. Following that interview the Claimant was offered and accepted a position as Assistant Manager at the Pembroke Arms. His employment commenced on 1 December 2008; it ended with his resignation on 11 January 2009
The original tribunal found that the Claimant's director, Mr Heap, asked that a sign be displayed saying that it was no longer a gay pub, that he sent an email barring 'over the top' old customers but this needs to be done right!!...." and referred to the customers as "queens." The Claimant resigned saying he was out of sympathy with Realpubs and what they represented and felt unable to work for them. He also told them that he would have nothing to do with the kind of business which Realpubs was seeking to build
On appeal the EAT considered that the Employment Tribunal (ET) had been required to make a judgment as to whether the factual matrix as a whole, as they found it to be, showed that Realpubs and in particular their director, Mr Heap, in advancing a legitimate policy of widening the appeal of the pub following its re-launch, implemented it in such a way that the old gay clientele was less favourably treated than the desired straight/family customer base on grounds of their sexual orientation. The ET had made the mistake of stopping their enquiry at the point where they found that the re-positioning strategy was lawful. In so doing they interpreted Realpubs acts as part of the legitimate strategy of widening the pub's appeal and did not properly consider their discriminatory effect.
The EAT found that, "based on that factual picture it is, we think, plainly and unarguably the case that gay customers were treated less favourably on the grounds of their sexual orientation. Consequently, on the principles of Showboat and Wethersfield the Claimant was treated less favourably on grounds of sexual orientation."
It followed that, on the ET's findings the Claimant's reason for resigning was prompted by unlawful discrimination against customers and that was a repudiatory breach which the Claimant accepted by resigning. The EAT went on to say that in any event the 'conventional' discrimination against the Claimant found by the ET in the form of the three remarks made by Mr Heap, was a contributory factor in his decision to resign, and these remarks were enough in themselves to justify resignation.
