The Court of Appeal has found that where employees direct homophobic taunts at a person who they know is heterosexual, it can amount to unlawful harassment on the grounds of sexual orientation. This reverses decisions by the Employment Tribunal and Employment Appeal Tribunal which held that protection from harassment under the Employment Equality (Sexual Orientation) Regulations 2003 extended to:
- Employees harassed on the grounds of their actual sexual orientation (whether homosexual or heterosexual).
- Employees harassed on the grounds of their perceived sexual orientation (where the perpetrators mistakenly thought that the employee was of a certain sexual orientation).
This decision of the Court of Appeal means that employees teasing another about being gay (or straight) when they know that the employee isn’t, may be acting unlawfully and exposing the employer to potential liability.
An employer will still have a defence if they can show that they took reasonable steps to stop this behaviour occurring, for example through regular training. However, employers should check the content of their equal opportunities training to ensure that this situation is covered.
English v Thomas Sanderson Ltd, Court of Appeal