English v Thomas Sanderson Limited – Court of Appeal

The Case

Mr English worked for Thomas Sanderson Blinds Limited. He was not gay, and his colleagues knew he was not gay. He was teased over a period of time by his colleagues who made homophobic comments about matters such as the fact that he had been to boarding school and lived in Brighton. He found these comments offensive and took action in the Employment Tribunal.

The Employment Tribunal and the Employment Appeal Tribunal ("EAT") held that for an employee to be covered by the Employment Equality (Sexual Orientation) Regulations 2003 ("the Regulations") in these circumstances, that he or she must be gay. Mr English appealed to the Court of Appeal and argued that the legislation was designed to cover all abuse "on the grounds of sexual orientation". Therefore it did not matter whether he was gay or straight.

The Decision

The Court of Appeal upheld his appeal. It added that there are policy reasons why this type of conduct ought to be prohibited by the Regulations. "Sexual orientation is not an either-or-affair. Some people are bisexual; some are asexual; some, including heterosexuals, have unusual interests or proclivities. All of these may desire to keep their orientation to themselves". The Court said that it cannot have been Parliament's intention that an individual must declare their sexuality in order to be covered by the law. The law, they decided, should protect employees who have not made their sexual identity known around the workplace.

What does it mean for you?

Employers should be aware that what may formerly have been classed as "teasing" in the workplace may now be unlawful and prohibited by anti-discrimination legislation. The level of compensation that can be awarded to a successful claimant for such claims is uncapped. Now more than ever, employers should put in place sufficient safeguards to ensure that the risks of being found liable for discriminatory behaviour are minimised. As a minimum, this involves putting in place robust and well publicised equal opportunities policies and ensuring managers receive sufficient training on this area of law.