You may recall the 2008 Court of Appeal decision which held that an individual could bring a claim of harassment on grounds of sexual orientation notwithstanding the fact that he was not, and his harassers knew he was not, gay. It was not necessary for a claimant to prove his or her sexuality. The case was remitted to the Tribunal to determine whether the claimant, Mr English, had in fact suffered unlawful harassment.
The case was decided under the Sexual Orientation Regulations 2003, though similar provisions now appear in the Equality Act 2010. Harassment arises where unwanted conduct has the purpose or effect of violating dignity or creating an intimidating, hostile or degrading environment for the victim. If, as in this case, the “effect” (rather than the purpose) of the conduct is in issue then a Tribunal must consider whether that “effect” is reasonable in all the circumstances, including the perception of the victim.
Despite having been subjected to “a protracted period of banter and innuendo of a homophobic nature” the Employment Appeal Tribunal agreed with the Tribunal that Mr English was not a victim of harassment. Though this may initially seem surprising, the facts indicated that Mr English had himself been “extremely offensive”. The Tribunal found that he had written articles for the Company magazine “riddled with sexist and ageist innuendo.” In addition, Mr English had remained on genuinely friendly terms with his alleged harassers. Taking this into account, it was not “reasonable” in all the circumstances for the conduct to have the effect of violating dignity or creating an adverse environment for him.
In what the Tribunal considered must have been “a truly horrid place to work” the reciprocity of offensive behaviour was ultimately Mr English’s downfall.