Legal opinion: Sexual orientation harassment in the workplace

Two recent cases have thrown up some interesting issues in relation to sexual orientation discrimination in the workplace, including whether or not an employee’s own conduct can be taken into consideration when deciding if harassment has taken place, and also whether or not disclosure of someone’s sexuality amounts to harassment.

Grant v HM Land Registry

The Court of Appeal held in this case that the disclosure of an employee’s sexual orientation did not amount to discrimination and harassment in circumstances where the employee had previously told other colleagues that he was gay.

Mr Grant was promoted to a new post in a different office for HM Land Registry. Mr Grant had disclosed that he was gay to colleagues in his old office but did not disclose this information to colleagues in his new office. His new line manager knew that Mr Grant was gay and mentioned this to Mr Grant’s new colleagues. Mr Grant alleged that his line manager’s comments were acts of discrimination and harassment. The Court of Appeal found that the line manager’s comments did not have the purpose or effect of violating Mr Grant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. A key consideration was that Mr Grant had chosen to reveal his sexual orientation to other colleagues. The Court also noted that this case was in a different category to the situation where an employee actually requests that his sexuality be kept secret.

Thomas Sanderson Blinds Ltd v English

This case highlighted two interesting points:

• Homophobic comments made about an employee by colleagues where the employee is not gay, and the colleagues know that the employee is not gay, can still amount to sexual orientation discrimination.
  
• An employee’s own conduct can be taken into account when deciding whether or not comments or actions of colleagues had the purpose or effect of violating an employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Mr English alleged that, for a protracted period, he was subjected to banter and innuendo of a homophobic nature. Two of Mr English’s colleagues, with whom he was good friends, used “distasteful, demeaning and degrading expressions” to Mr English. However, Mr English himself engaged in similar conduct; he wrote a number of articles in the company’s internal magazine that the tribunal described as “riddled with sexist and ageist innuendo”. The tribunal described Mr English’s workplace as “a truly horrid place to work”. Mr English did not make any complaint until August 2005, when an article was written that made comments about his sexuality, which his family read. The Employment Appeal Tribunal held that the previous conduct and comments made by Mr Grant’s colleagues did not amount to harassment given Mr English’s own behaviour. However, the article was a “tipping point” and did constitute harassment (although Mr English’s claim was out of time when this incident alone was taken into account). The Court of Appeal (in a previous hearing on this point) had held that the fact that Mr English was not gay, and his colleagues knew this, did not prevent him from being protected from sexual orientation discrimination.

Practical points for employers

• These cases show that tribunals will take into account surrounding circumstances when deciding whether or not certain acts constitute discrimination and harassment.
  
• Although disclosure of an employee’s sexuality will not always amount to discrimination, if the employee has requested that his or her sexuality be kept confidential, a failure to comply with this request can amount to discrimination.
  
• Light-hearted conversations and “banter” between colleagues may not amount to discrimination where an employee similarly participates in these discussions, but these conversations can reach a “tipping point” where certain comments or actions can constitute harassment. Employers should avoid the possibility of an atmosphere in the workplace being created where offensive comments can frequently be made, exposing the employer to the risk that someone will “overstep the mark”. Accordingly, a general culture of respect and tolerance should be promoted throughout the workplace.
  
• Staff should understand that harassment means any unwanted behaviour that makes someone feel intimidated, degraded, humiliated or offended, which includes teasing, name calling, mimicking, gossip and “banter”.
  
• Employers should ensure that their dignity at work and harassment policies are up to date and cover discrimination on grounds of sexual orientation.
  
• When complaints are made, they should be handled sensitively, in good time, and in accordance with the employer’s policy and the Acas code of practice on disciplinary and grievance procedures.

Verity Clark, Solicitor, Brodies LLP

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Can a heterosexual employee bring a harassment claim on the basis that he or she is offended by regular homophobic banter between colleagues? Are employers required to monitor their employees’ sexual orientation? Is an employer liable for offensive and/or potentially discriminatory material or comments posted on its intranet bulletin board?