Homophobic banter directed at an employee who was not gay, and who his “tormentors” knew was not gay, does not amount to sexual orientation discrimination, a court has ruled.
Mr English brought a claim against his employer Thomas Sanderson Blinds under the Sexual Orientation Regulations. He said he was singled out for discriminatory abuse because he fitted his colleagues’ stereotype of a gay man.
His workmates knew he was not gay, but used homophobic language to harass him.
However, the Employment Appeal Tribunal ruled English had no claim for bullying or harassment under the Act.
Protection only covers someone who is gay or bisexual, or someone who is perceived/assumed to be gay or bisexual by their fellow workers.
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The case comes just weeks after an Advocate-General ruled in Cole v Attridge that discrimination by association – in this case with a disabled person – would be prohibited by the directive.
The European Court of Justice made the decision in English v Thomas Sanderson Blinds “reluctantly”, as the result may have been different on direct application of the EU Equal Treatment Directive, as opposed to reliance on the regulations. The directive states discrimination “related to” rather than “on the grounds of”, which would have given English’s claim more chance of being upheld.
