‘As soon as he sent court papers, shop staff stopped mocking him on the street. Legal action works!”
I recently went to an interesting and unusual trial in Essex, the case of Small v Taylor Edwards (London) Ltd Southend County Court, 18 September 2015.
The claimant, Robert Small, had bought some patio locks from a local locksmith. A bit later, he took them back because they were scratched. The shop refused to refund him.
It is true that this gives rise to a dispute under the Sale of Goods Act 1979: items must be of satisfactory quality, including appearance and finish. But how did it lead to a multi-track trial before HHJ Moloney?
In the event, the court ruled that the shop was entitled to refuse the refund as he had not taken the locks back for two or three months, too late to ‘rescind’ the contract. Consumer advisers take note.
However, in the course of refusing the refund, the shop assistant (it was actually his mum’s shop) decided to insult his customer. Perceiving that the customer was gay, the shop assistant – as the judge found – blew a sarcastic kiss at him as he left the shop.
To an openly gay man in a small seaside town, this sort of treatment was not unknown, but the shop assistant wouldn’t let it lie. He continued to make such mocking gestures to the claimant on many occasions afterwards. This happened because the locksmith would often be standing outside the shop on a cigarette break when the claimant was passing on his way to the shops. The gestures were embarrassing and humiliating, especially because it was in public and the victim was sometimes with other people.
This happened about 20 times until the claimant felt he needed to take action. As soon as the shop got the court papers, the incidents stopped. Legal action works!
He was a credible client who could explain clearly what happened to him and why it was so offensive.
Eventually it came to trial. The court found that the shop assistant’s behaviour was on the grounds of sexual orientation, one of the protected characteristics in the Equality Act 2010. This amounted to direct discrimination and, having heard the evidence of my client and someone else who had witnessed one of the incidents, the judge awarded £7,500 in compensation. This was based on the Vento scale, which is used for awards of injury to feelings.
There are very few county court cases of discrimination because of sexual orientation (I would be interested to hear of any). However, this case was also unusual because it was the first where all the discriminatory contact between the parties was by way of gestures, not speech or other actions. Another first was that the case relied on Equality Act 2010 s108 (relationships that have ended). This meant the discriminatory incidents outside the shop were still unlawful, even though the shop was no longer providing a service.
The defence barrister did not realise – until the trial – the odd exemption in the Equality Act 2010 that it is not actually unlawful for a service provider to harass someone because of sexual orientation. This is because s26 (harassment) is disapplied in the field of services by s29(8) where the protected characteristic is religion or belief, or sexual orientation. In this case, though, the same incidents amounted to direct discrimination.
What contributed to success in this case? First, a credible client who was both prepared and able to start court proceedings, and who could explain clearly what happened to him and why it was so offensive; second, a witness who thought it was important to stand up in court; and third, an experienced discrimination barrister who could explain to the court how the Equality Act 2010 works and why.

About the author(s)

Description: Douglas Johnson - author
Douglas Johnson is a discrimination specialist and a consultant. He is chair of the Housing Policy Committee at Sheffield City Council.