In Thomas Sanderson Blinds v English, the Employment Appeal Tribunal (“EAT”) held that the employment tribunal had applied the correct test when considering whether an employee had suffered harassment by taking into account the employee’s own perceptions and feelings to determine whether the unwanted conduct in question had the effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. In this DechertOnPoint, we report on this decision which confirms the correct approach to harassment claims.
The Definition of Harassment
The Equality Act 2010 defines harassment as unwanted conduct related to any protected characteristic which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. In deciding whether the conduct has this effect, the legislation explicitly provides that the employment tribunal must consider the perception of the alleged victim, the circumstances of the case and whether it is reasonable for the conduct to have that effect.
The Employment Tribunal Case
Mr English, who is heterosexual, complained that he had suffered homophobic banter and innuendo from his colleagues because he had attended a boarding school and lived in Brighton. He brought a claim of harassment on grounds of sexual orientation under the legislation introduced in 2003 which is now set out in the Equality Act 2010.
As a preliminary issue, the Court of Appeal held that Mr English was protected by the sexual orientation legislation even though he was not gay and his tormentors knew that he was not gay.
At the subsequent substantive hearing, the employment tribunal held that his claim of harassment was only made out in respect of an article written about him in an internal magazine in August 2005. This was held to be a “tipping point” which exceeded what Mr English considered to have been an acceptable level of personal attack and insult. The employment tribunal rejected all other claims of harassment relating to previous conduct on the basis that:
- Mr English had himself engaged in banter and written similarly offensive articles “riddled with sexist and ageist innuendo” in the internal magazine;
- he was good friends with his tormentors; and
- he had not complained before the article was written.
The employment tribunal therefore concluded that all but one aspect of the conduct complained of did not have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. However, the article in the magazine was found to meet the test for harassment. Nonetheless, the claim was out of time. Mr English appealed against the decision.
The EAT upheld the employment tribunal’s decision on 21 February 2011. The employment tribunal had correctly applied the test, i.e.:
- whether the claimant felt or perceived their dignity to have been violated or an adverse environment to have been created; and
- whether it was reasonable for them to do so.
For example, if the employment tribunal considered that the claimant was unreasonably prone to take offence, then, even if he did genuinely feel his dignity to have been violated, there would be no harassment.
The employment tribunal must also have regard to all the relevant circumstances, including the context of the conduct in question. It was entirely proper for the tribunal to take into account Mr English’s own offensive behaviour and the fact that he was friendly with his tormentors in reaching its decision that the conduct directed at him did not have the effect of violating his dignity or creating an adverse environment.
This case should not be seen as relaxing the test of what constitutes unlawful harassment or legitimising offensive banter, which may in any event provoke complaints and claims from those who are affected, even if they are not the direct targets of the comments in question. It does, however, emphasise the need to address the context of the events complained of to determine if they truly constitute harassment.