The Court of Appeal has held that the Employment Equality (Sexual Orientation) Regulations 2003 protect a heterosexual man who was repeatedly tormented by homophobic banter from his colleagues.

In our March 2008 briefing, we reported on the Employment Appeal Tribunal’s decision in English v Thomas Sanderson Blinds Ltd, in which the EAT held that the Sexual Orientation Regulations did not protect the Claimant, a heterosexual married man and the father of three children, who was subject to homophobic insults by his work colleagues who knew he was not gay.

Under Regulation 5 of the Sexual Orientation Regulations, a person subjects another person to harassment where, on the grounds of sexual orientation, they engage in unwanted conduct which has the impact or effect of:

  1. violating his dignity; or
  2. creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

The EAT had found that the Sexual Orientation Regulations did not cover homophobic banter directly towards a man who is not gay, is not perceived/assumed to be gay by his fellow workers and accepts that they do not believe him to be gay. The EAT decided that the homophobic banter, unacceptable as it was, was a vehicle for teasing the Claimant and was not based on any perception or incorrect assumption that he was gay. It held, therefore, that the harassment was not “on the grounds” of the Claimant’s sexual orientation.

However, the Claimant was given leave to appeal to the Court of Appeal and the EAT’s judgment has now been overturned.

Some key points from the Court of Appeal’s decision are:

  1. It did not matter whether the Claimant was in fact gay or not. The incessant mockery created a degrading and hostile working environment and did so on the grounds of sexual orientation. The fact that the Claimant was not gay, and that his tormentors knew it, had just as much to do with sexual orientation as if he were gay.
  1. It is settled law that tormenting a person who is believed to be gay, but is not, amounts to unlawful harassment. The distance from that principle to tormenting a person who has been treated as if he were gay, when he is not, is barely perceptible. In both cases, the man’s sexual orientation, imaginary in both cases, is the ground of the harassment.
  1. Even if the Claimant was homosexual, it is obviously not for the Claimant to show that he was homosexual, any more than a Claimant in a racial discrimination case must prove that they were Asian or a Jew.