UK sexual orientation regulations do not prohibit homophobic banter against an employee known to be heterosexual.

The 'banter' consisted of sexual innuendo from colleagues suggesting that the employee was homosexual, even though they knew he was not, because he had attended a boarding school and lived in Brighton. The EAT ruled that the UK regulations, which prohibit harassment on grounds of sexual orientation, do not cover this situation. In its view, UK law is therefore out of line with EU law prohibiting harassment related to sexual orientation, which it thought would cover such banter. Permission was given to appeal to the Court of Appeal. (English v Thomas Sanderson Blinds Ltd, EAT).

This difference in terminology between the EU Directive and all of the UK discrimination laws has already been the focus of a couple of challenges, in the successful EOC judicial review case (following which regulations amending the Sex Discrimination Act are expected shortly), and Coleman v Attridge Law (which is awaiting judgment from the ECJ). If an appeal is unsuccessful, this case will add to the pressure on the Government to amend this aspect of UK discrimination law to allow such claims to be brought against private employers (claims based directly on the EU source law may be brought against public body employers). Best practice employers may want to extend their dignity at work training to cover the broader EU position even before UK law is amended.