Legal Q&A: no straight answer to ‘gay banter’ harassment claim

In the recent case of English v Thomas Sanderson Blinds, the Employment Appeal Tribunal (EAT) held that a man who had been subject to homophobic ‘banter’ could not bring a claim for harassment under the sexual orientation regulations, because he was not, in fact, homosexual. Nor was he perceived to be so. So who is protected by the regulations, and what are the implications for regulating workplace behaviour?

Q What harassment is prevented by the Sexual Orientation Regulations?

A It is unlawful for an employer to subject an employee or job applicant to harassment on the grounds of sexual orientation. Under the regulations, a person subjects another to harassment where, on grounds of sexual orientation, they engage in unwanted conduct that has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, humiliating or offensive environment for them.

Typical examples include homophobic jokes directed at someone in the workplace known to be gay. The Department for Business, Enterprise and Regulatory Reform’s (BERR) explanatory notes explain that this may relate to the victim’s sexual orientation, perceived orientation, or the sexual orientation of others ( such as a member of his/her family). Where this provision is used, the victim will have a claim against the individual harasser, as well as their employer.

Q Who is protected from harassment?

A It is reasonably clear that the following categories of people will be protected from harassment:

  • Someone who is homosexual
  • Someone who is perceived by his harassers as homosexual
  • Someone who is harassed because of their failure to follow instructions to discriminate against another on the grounds of sexual orientation.

What is less clear is whether someone who is harassed by reason of their association with a homosexual is protected, although this would appear to be the case judging by the BERR’s explanatory note.

Q What type of behaviour is not currently prohibited?

A Where a person’s sexuality (or that of someone associated with them) is not the reason for the harassment, the victim will not be covered. So, where homophobic comments are used as a vehicle for teasing someone, but it is known they are not in fact homosexual, that person will not have a claim, no matter how offensive the behaviour. They may however, have grounds for a claim under the Protection from Harassment Act in such circumstances and/or for constructive unfair dismissal if they resign as a result.

Q Is the situation likely to change?

A Yes. The European directive upon which our regulations are based only requires the behaviour to be related to sexual orientation. There is a material difference between this and the expression on the grounds used in our domestic legislation.

The wording of the directive does not require an examination of the reason for the behaviour, which does not need to be caused by a person’s sexual orientation. Had English been able to rely on the directive, he would almost certainly have succeeded in his case – a fact recognised by the EAT. The EAT referred to the situation as unsatisfactory, and for this reason gave leave for the claimant to appeal.

The Equality and Human Rights Commission, in its former guise as the Equal Opportunities Commission, has already successfully challenged equivalent provisions on sexual harassment in the Sex Discrimination Act as not properly implementing the directive. The government has been ordered to amend the offending provisions. No changes have yet been made, although they were initially promised for October 2007. When the amendments are made, they will be made equally to the regulations on sexual orientation and other prohibited forms of harassment.

Q What will be the effect of a change in the law?

A The scope for harassment in breach of the Sexual Orientation Regulations and other discrimination legislation will be much more far reaching. First, there will be no doubt that harassment by association will be covered by the amended wording, covering a situation where the offensive comments relate to a friend or relative. Second, and even more significantly, someone who is offended by homophobic comments will be able to bring a claim even if neither they, nor someone associated with them is homosexual, provided the behaviour has the effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

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