In an interesting case on harassment, the Employment Appeal Tribunal has highlighted a gap in the protection afforded to individuals by the Sexual Orientation Regulations 2003.

The decision reached in English v Thomas Sanderson Blinds Ltd confirms that the current law prohibiting harassment on the grounds of sexual orientation does not cover “homophobic banter directed towards a man who (a) is not gay, (b) is not perceived /assumed to be gay by his fellow workers and (c) accepts they do not believe him to be gay”.

Mr English worked for Thomas Sanderson Blinds Ltd under a contract for services, which ended on 26 August 2005. Following the termination of his contract, he entered an Employment Tribunal claim against the company, alleging (amongst other complaints) harassment contrary to the Sexual Orientation Regulations 2003. his claim was that throughout his engagement with the company, he had been subjected to sexual remarks and jokes made by his colleagues, to the effect that he was homosexual. It was alleged that the taunting or “banter” which followed had been started by a manager, upon discovering that Mr English had been to boarding school and lived in Brighton. It was accepted by both parties that despite these facts, Mr English was actually not homosexual and those making the jokes knew this to be the case. Mr English even accepted that his colleagues did not believe him to be homosexual.

In considering the case, the Employment Tribunal found that Mr English did not fall into any of the categories afforded protection against harassment. Regulation 5 of the Sexual Orientation Regulations 2003, provides that:

5 Harassment on grounds of sexual orientation

(1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on the grounds of sexual orientation, A engages in unwanted conduct which has the purpose or effect of-

(a) violating B’s dignity; or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.”

The law is derived from a European Directive, which defines harassment as a form of discrimination arising from unwanted conduct, related to any of the considered grounds (including sexual orientation).

In reaching its decision in this case, the EAT concluded that the aims of the European Directive were not met by the wording of Regulation 5 and Mr English was not entitled to rely on the Regulations in his complaint against the company. The EAT found:

In these circumstances we have concluded that, on the facts, the unwanted conduct was not on grounds of sexual orientation. The homophobic banter (on the necessary assumption contrary to the Respondent’s case) unacceptable as it was, was a vehicle for teasing the Claimant…It was not based on their perception nor even incorrect assumption that he was gay.”

For these reasons the appeal against the Employment Tribunal’s decision, was dismissed, but Mr English was given leave to appeal to the Court of Appeal.