Gay banter against heterosexual ruling

English v Thomas Sanderson Ltd

FACTS

Stephen English worked for Thomas Sanderson Ltd, a supplier of blinds, between 1996 and 2005. In November 2005, he issued a claim in the Employment Tribunal alleging that he had been harassed contrary to the Employment Equality (Sexual Orientation) Regulations 2003.

The regulations state that a person subjects another to harassment where, on grounds of sexual orientation, they ‘engage in unwanted conduct which has the purpose or effect of violating [the] dignity [of] or creating an intimidating, hostile, degrading or offensive environment for’ another.

English alleged that he had been subjected by his colleagues to sexual innuendo, suggesting in obvious terms that he was homosexual, for a long time. The apparent basis for this was that English had been to a boarding school and lived in Brighton. In fact, he is a heterosexual married man with three children.

English accepted that his colleagues knew this and that they did not actually believe him to be homosexual.

DECISION

The employment tribunal dealt with the complaint by determining the preliminary issue of whether the regulations protect a man who: is not gay is not perceived or assumed to be gay and accepts that his colleagues do not believe him to be gay.

The employment tribunal, with some reluctance, found that the regulations do not protect someone in these circumstances. It said that to find in English’s favour would be to extend the ambit of the regulations too far.

The Employment Appeal Tribunal (EAT) upheld the Employment Tribunal’s decision. It said that, on the facts, the unwanted conduct was not on grounds of sexual orientation. The homophobic banter was a vehicle for teasing English, but it was not based on the perception or assumption that he was gay.

By a majority decision, the Court of Appeal overturned the EAT decision. The majority said that the single critical assumed fact was that English was repeatedly taunted as gay. It did not matter whether he was gay or not. The mockery created a degrading and hostile environment and it did so on grounds of sexual orientation. This brought the case within the regulations. The court also said that there were policy reasons why the behaviour in this case should be covered by the regulations.

IMPLICATIONS

This case widens the scope of protection against harassment on grounds of sexual orientation and it means that harassment need only be related to sexual orientation – it does not have to be based on an individual’s actual, perceived or assumed sexual orientation. The implications of this case do not rest there, however. Similar definitions of harassment are contained in other strands of discrimination legislation, namely race, age and religion/belief. The findings made in this case potentially significantly widen the scope of protection against harassment in these areas as well.

The case also raises issues in relation to the protection against harassment contained in sex and disability discrimination legislation. These areas of law appear to require the harassment to relate to someone’s actual sex, or to involve an individual, or someone who is associated with them, who is actually disabled. This conflicts with the outcome of this case. We shall have to wait to see whether the government addresses these matters in the forthcoming Equality Bill.

Sandra Wallace, partner, DLA Piper