The Court of Appeal has held, in the case of English v Thomas Sanderson Ltd, that the Employment Equality (Sexual Orientation) Regulations protect an employee subjected to "homophobic banter", even though his colleagues had not actually thought he was gay when they were "teasing" him.
The Sexual Orientation Regulations define harassment as behaviour which "on the grounds of sexual orientation has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment."
The Employment Tribunal and the EAT held that the Sexual Orientation Regulations did not protect a man who was neither gay nor perceived to be gay. However, the Court of Appeal (by a majority) did not agree and ruled that the abuse suffered did come within the Regulations. The calculated insult to Mr English's dignity did not depend on his actual sexuality and did in fact create a degrading and hostile environment on the grounds of sexual orientation.
The Court of Appeal also commented on the policy reasons behind its decision, saying that the discrimination laws should not be dependent upon an individual placing themselves in one or other strict definition of their condition. It could not have been the intention, when the legislation was introduced, that a claimant must declare his or her true sexual orientation.
Impact on employers
This decision widens the scope of the protection against harassment on the grounds of sexual orientation. Only the harassment itself need be related to sexual orientation; it does not matter what a person's actual, perceived or assumed sexual orientation is. Similar definitions of harassment are contained in other discrimination legislation, namely harassment on the grounds of race, age and religion or belief and similar principles should therefore apply in relation to claims of harassment on those grounds.
Employers should ensure that their employees are properly educated about avoiding "banter" linked to any potential grounds for discrimination by the use of properly drafted policies and training.
Protection against harassment in relation to sex, marital status and gender reassignment is narrower and requires any harassment to be on the grounds of an employee's actual sex, marital status or gender reassignment. In the case of disability, association with a person who is actually disabled seems to be required for the protection to apply. We shall have to wait for the forthcoming Equality Bill to see whether and how the Government addresses these conflicts.