English v Thomas Sanderson Blinds Ltd, Employment Appeal Tribunal
Mr English complained to an employment tribunal that, for a number of years, his work colleagues had subjected him to ‘banter’ to the effect that he was homosexual. He claimed this course of conduct started when a manager discovered that he (a) had attended boarding school and (b) lived in Brighton (the UK city with the largest proportion of gay residents).
English is not homosexual, his colleagues did not mistakenly or genuinely believe him to be homosexual and, most importantly, English accepted that they did not believe he was homosexual.
However, he argued that the banter amounted to harassment contrary to Regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003, which defines harassment as unwanted conduct by a person, on grounds of sexual orientation, which has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Reluctantly, the Employment Appeal Tribunal (EAT) dismissed the appeal and concluded that English had not been harassed within the meaning of the regulations, ie, “on the grounds” of sexual orientation, since the banter was not based on a perception or even incorrect assumption that he was homosexual. However, the EAT went on to consider whether the regulations properly implemented the EU directive under which they were made, which (among other things) prohibits harassment “related to” sexual orientation.
The EAT drew an analogy with Equal Opportunities Commission v Secretary of State for Trade and Industry, in which the commission was successful in arguing that amendments to the Sex Discrimination Act 1975 failed properly to implement a different, but similarly worded, EU directive because the amendments only outlawed harassment “on the grounds of her sex”, rather than harassment “related to”, or even “on the grounds of sex”. The amendments required an analysis of the reason for the harasser’s behaviour and didn’t merely prohibit the form that the harassment took. It was argued that this was not the intention of the directive, given that its purpose is to promote equal treatment. The EAT said the same analysis applied to the sexual orientation regulations.
The EAT commented that the result may have been different if English had been able to bring a claim under the directive itself (which he could not), rather than under the regulations. The EAT went as far as to describe this as an unsatisfactory state of affairs, and gave leave to appeal to the Court of Appeal. If that appeal fails, it is expected that the Sexual Orientation Regulations will have to be amended so that they properly comply with EU law.
Although this is a disappointing result for employees, employers can still offer some protection through their own ‘dignity at work’ and harassment policies and by promoting a general culture of respect and tolerance.
As always, grievances raised by employees in relation to harassment should be handled sensitively, in good time and in accordance with the company’s policy, or the Statutory Grievance Procedure as a minimum.
However, despite being initially promised by October 2007, the amendments to the Sex Discrimination Act ordered in the EOC case have not yet materialised, so it seems that any changes to the Sexual Orientation Regulations may be a long way off.