English v Thomas Sanderson Blinds

The Facts

Mr. English complained to a Tribunal that, for a number of years, his work colleagues had subjected him to "banter" to the effect that he was homosexual. He claimed this had started when a manager discovered that he (a) had attended boarding school and (b) lived in Brighton. Mr. English is not in fact homosexual, and, most importantly, Mr. English accepted that his colleagues did not mistakenly or genuinely believe him to be homosexual. 

However, he argued that the banter amounted to harassment contrary to the Employment Equality (Sexual Orientation) Regulations 2003 (Regulation 5). The Regulations define harassment as unwanted conduct by a person, on grounds of sexual orientation, which has the purpose or effect of violating that person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. 

A preliminary issue for the tribunal was whether Mr English was protected by the Sexual Orientation Regulations. The EAT determined that Regulation 5 as it currently stands could not give Mr English the protection he sought. The EAT concluded that “the unwanted conduct was not on grounds of sexual orientation. The homophobic banter … unacceptable as it was, was a vehicle for teasing the Claimant …. It was not based on [his colleagues] perception, incorrect or otherwise, that he was gay.” In other words protection only covers someone who is gay or bisexual or perceived or assumed to be so. 

On appeal to the Court of Appeal it was held that the case fell squarely within the Sexual Orientation Regulations. The court took the view that unwanted homophobic banter was "on grounds of sexual orientation" within the meaning of regulation 5(1), regardless of whether the victim is gay or whether his tormentors are aware of his true sexuality

Having decided that Mr English was protected by the Sexual Orientation Regulations the tribunal has recently addressed the substantive issue of whether Mr English was in fact harassed. 

The Decision

At the substantive hearing, an employment tribunal found that Mr English's harassment claim was made out in respect of an article written about him in an internal newsletter in August 2005. However, his claim in relation to this conduct was submitted out of time and so failed. The tribunal rejected his harassment claim in relation to previous conduct. Although Mr English was subjected to "distasteful, demeaning and degrading expressions", he had himself written a number of articles which were "riddled with sexist and ageist innuendo". He also remained very friendly with his alleged tormenters throughout and, with the exception of the August 2005 newsletter, did not complain about their conduct. Taking this and Mr English's "extremely offensive behaviour" while at work into account, the tribunal concluded that the conduct did not "in his eyes" have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Kirsty Rogers

Partner - Executive Partner (Manchester) & Head of Client Development

I oversee the firm’s approach to client relationships across the commercial side of the business, whilst maintaining my core role as an employment lawyer.