Background

The Court of Appeal has considered whether an individual who has been subjected to “homophobic banter” by fellow workers is protected by Regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003 despite the fact that he is not gay, is not perceived to be gay or assumed to be gay by his tormentors and accepts that his tormentors do not believe him to be gay.

Facts

Mr English (“the employee”) worked for Thomas Sanderson Ltd (“Sanderson”) between 1996 and August 2005. In November 2005, the employee issued a claim in the employment tribunal against Sanderson alleging that he had been teased over a period of time and was the subject of homophobic comments by his colleagues relating to the fact that he had been to boarding school and lived in Brighton. The employee found these offensive and claimed discrimination on the grounds of sexual orientation.

The Employment Tribunal dismissed the employee’s claim ruling that he must be gay in order to be protected by the Regulations and that “to find in the claimant’s favour would be to extend the ambit of the Regulations.”

The employee appealed to the EAT who upheld the ET’s decision but granted him leave to appeal to the Court of Appeal on the basis that the legislation was designed to cover all abuse “on the grounds of sexual orientation” and that it did not matter whether he was gay or perceived to be gay.

On 19 December 2008, the Court of Appeal upheld the appeal adding that there are policy reasons why this type of conduct should be covered by the Regulations. They explained that sexual orientation “is not an either-or-affair”; some people are heterosexual, some are homosexual, some are bisexual, some are asexual, and some just want to keep their sexual identity to themselves. It cannot have been Parliament’s intention that an individual must declare their sexuality in order to be covered by the law; the law needs to cover employees who have not made their sexual identity known around the workplace.

Effect on employers

This case, which is binding on Employment Tribunals, will have an impact on employers because, what formerly may have been classed as “teasing” in the workplace, may now be covered by anti-discrimination legislation, for which the level of compensation that can be awarded to a claimant is uncapped. More than ever employers need to put in place sufficient safeguards to ensure the risks of being liable for discriminatory behaviour are minimised.

Similar definitions of harassment to that protecting gay and lesbian employees are contained in legislation covering race, religion or belief, and age. This means that the above decision opens the door for similar claims to be brought in these areas too.

English v Thomas Sanderson Limited [2008] EWCA Civ 1421