In English v Thomas Sanderson the Court of Appeal (but only by a 2/1 majority) has overturned the EAT and decided that an employee can be harassed 'on grounds of sexual orientation' when he is subjected to homophobic taunts, even though he is not himself homosexual and the taunting colleagues know that.
The Court of Appeal judges were concerned to establish the point at which otherwise tolerable behaviour becomes unlawful discrimination. The issue arises because the relevant European directive talks about unlawful harassment being ‘on grounds of sexual orientation’ without the claimant’s actual, perceived or assumed sexual orientation being an issue at all. The court looked at a long line of cases where the boundaries of discrimination law had been extended. In the 1984 case of Showboat it was held to be race discrimination when an employee disobeyed his employer’s instruction not to discriminate against someone else. In the recent case of Attridge Law it was disability discrimination for an employer not to allow an able-bodied employee to work hours that enabled her to care for her disabled child.
The cases showed that an employee may have 'grounds' to bring an unlawful discrimination claim without him/herself being black/disabled etc. It followed that the employee in this case should be allowed to bring a sexual orientation claim even though he was not himself gay.
Points to note –
- The claimant succeeded in this claim because, in general terms, incessant mockery had created a degrading and hostile working environment.
- Employers should be sure that they have policies in place, and monitor how they operate in practice, to ensure that ‘workplace banter’ does not get out of hand and make them defendants to an unlawful discrimination claim!