In English v Thomas Sanderson Limited 2008 the Court of Appeal has held by a majority that “homophobic banter” directed at an employee could be harassment under the Sexual Orientation Regulations, even where the victim was not gay; his “harassers” did not believe him to be gay; and he knew that his “harassers” did not believe him to be gay.

Implications

Although the behaviour displayed by Mr English’s colleagues was clearly unacceptable, it probably did not necessarily follow in the minds of practitioners and employers that this unwanted conduct would be covered by the Regulations, in particular given the previous decisions in this case. Important points to note are that:

  • Employers should review their own Dignity at Work and harassment policies to ensure that such behavior is covered and to continue to promote these policies in the workplace.
  • As always, grievances raised by employees in relation to harassment should be handled sensitively, in good time and in accordance with the employer’s policy, taking account of the statutory grievance procedures or ACAS Code of Practice as appropriate.

Facts

Mr English worked for Thomas Sanderson Ltd from 1996 until 2005 when he left employment and brought a claim for harassment under the Sexual Orientation Regulations (“the Regulations”).

Mr English alleged that during his employment, his colleagues had subjected him to homophobic banter (calling him names such as “faggot”) because he had attended boarding school and lived in Brighton.

The tribunal held that Mr English was not protected by the Regulations because the treatment he received was not “on grounds of” anyone’s actual or perceived sexual orientation. The reasoning for this was that (a) he was not gay; (b) the colleagues who had engaged in the homophobic banter did not mistakenly or genuinely believe him to be gay and (c) Mr Thomas knew that his colleagues did not believe him to be gay. The Tribunal therefore dismissed his claim.

The EAT upheld this decision on appeal However, it held that, in not covering the circumstances of Mr English’s case, the Regulations failed to properly implement the Framework Directive: in covering only treatment “on grounds of” rather than “relating to” sexual orientation”.

The EAT therefore gave Mr English leave to appeal to the Court of Appeal.

By a majority, the Court of Appeal upheld Mr English’s appeal, taking the view that unwanted homophobic banter is “on grounds of sexual orientation” within the meaning of the Regulations, regardless of whether the victim is gay or whether his tormentors are aware of his true sexuality in summary because:

  • Mr English was repeatedly taunted as if he were gay
  • The fact that Mr English was not gay and his “harassers” were aware of this were clearly to do with his sexual orientation.
  • The phrase on “grounds of sexual orientation” does not require an examination of motive or purpose or cause and effect following Nagarajan v London Regional Transport but why the harassment occurred and whether or not the harassment was based on someone’s sexual orientation, whether real or imagined; and
  • This view was consistent with the Framework Directive.

Lord Justice Laws gave the dissenting judgment. In his view, “harassment is perpetrated on grounds of sexual orientation only where some person or persons’ actual, perceived, or assumed sexual orientation gives rise to it, that is, is a substantial cause of it.” His view was that to bring Mr English’s treatment within the Regulations was to confuse the reason for the conduct complained of (which was nothing to do with anyone’s actual or perceived sexual orientation) with the nature of that conduct (the homophobic banter was simply the vehicle used by his colleagues to tease Mr English). He also disagreed that the majority view was consistent with the Framework Directive.