Protection from Homophobic Harassment – Sexuality Not Relevant

A heterosexual man, who claimed that the homophobic banter he was exposed to at work for a protracted period constituted harassment under Regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003, has won his appeal in the Court of Appeal by a majority decision (English v Thomas Sanderson Ltd.).

Mr English worked for Thomas Sanderson Blinds Ltd. under an agency agreement. He claimed that he had for many years been subjected to banter of a homophobic nature, including being called a 'faggot'. Mr English accepted that his tormentors did not mistakenly or genuinely believe that he was gay. However, he argued that their treatment constituted harassment under Regulation 5, which defines harassment as unwanted conduct towards another 'on the grounds' of sexual orientation, which violates that person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. However, the EU Council Directive 2000/78/EC, which the Sexual Orientation Regulations implement into UK law, defines harassment at work as unwanted conduct 'related to' sexual orientation.

The Employment Tribunal and the Employment Appeal Tribunal (EAT) held that Mr English was not protected by Regulation 5. However, the EAT did conclude that the Regulations did not properly implement the Framework Directive and granted permission to appeal to the Court of Appeal.

Mr English argued that Regulation 5 should be 'read down' so as to give effect to the broader scope inherent in the Framework Directive.

Whilst the appeal was upheld, the dissenting judge, Lord Justice Laws, found that although protection from harassment is not limited to situations where the victim is mistreated because of his or her own condition, the treatment must be on the grounds of sexual orientation and this must be 'connected with someone's actual, perceived or assumed condition'. To rule otherwise would amount 'not to a Pandora's box, but a Pandora's attic of unpredictable prohibitions'.

LJ Sedley, however, judged that 'the single critical assumed fact was that the appellant was repeatedly taunted as gay. In my judgment it did not matter whether he was gay or not. The calculated insult to his dignity, which depended not at all on his actual sexuality, and the consequently intolerable working environment were sufficient to bring his case both within Regulation 5 and within the Framework Directive'. Mr English's treatment created a degrading and hostile working environment and it did so on grounds of sexual orientation.

LJ Lawrence Collins agreed that there was harassment on grounds of sexual orientation. The conditions of Regulation 5 had been satisfied, namely that '(a) on grounds of sexual orientation (b) the tormentors engaged in unwanted conduct (c) which had the purpose or effect of violating the claimant's dignity or creating a degrading, humiliating or offensive environment for the claimant, and (d) which should reasonably be considered as having that effect'.

LJ Sedley went on to say that 'there is no Pandora's box here: simply a consistent application of the principle that, while you cannot legislate against prejudice, you can set out in specified circumstances to stop people's lives being made a misery by it'.

Aston Bond says, "Employers are advised to adopt a zero tolerance policy towards behaviour that humiliates or violates the dignity of an employee. Contact us for advice on any discrimination law matter."

Partner Note
The Appeal Court judges expressed dissatisfaction that the case had been referred for a ruling on a preliminary issue based on 'simplistic facts distilled by the employment tribunal' that have eliminated all the potentially important nuance and detail upon which a case such as this, properly considered, ought ordinarily to turn. See http://www.bailii.org/ew/cases/EWCA/Civ/2008/1421.html.

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