English v Thomas Sanderson Blinds [2008] EWCA Civ 1421 CA

sexual orientation discrimination | harassment

The Court of Appeal has held that the Employment Equality (Sexual Orientation) Regulations 2003 do cover homophobic abuse against a man who is not gay and who is not perceived to be gay by those who made the remarks.

Mr English complained to an employment tribunal of harassment contrary to the Employment Equality (Sexual Orientation) Regulations 2003. He claimed that his colleagues had for many years subjected him to innuendo about his sexuality. Mr English is heterosexual and he accepted that his colleagues did not believe him to be gay. The employment tribunal found that he was not protected by the Regulations as he is not a person who is homosexual; perceived by his harassers as homosexual; or harassed because of his failure to follow instructions to discriminate against another on grounds of sexual orientation.

The EAT agreed. It held that the protection afforded by the Employment Equality (Sexual Orientation) Regulations 2003 is narrower than that provided by the Equal Treatment Directive (2002/73/EC). The phrase "on grounds of sexual orientation" in the Employment Equality (Sexual Orientation) Regulations 2003 is narrower than the wording in the Directive, which prohibits harassment "related to" sexual orientation. In Mr English's case, the homophobic abuse was not "on grounds of sexual orientation". It was not based on his colleagues' perceptions or even their incorrect assumptions that he is gay.

The Court of Appeal, albeit by a majority, overturned the EAT's decision. It said that the single critical fact is that Mr English was repeatedly taunted as gay. His true sexual orientation does not matter. The calculated insult to his dignity, which depended not at all on his actual sexuality, and the subsequent intolerable working environment were sufficient to bring his case within both the Employment Equality (Sexual Orientation) Regulations 2003 and the Equal Treatment Directive.

In addition, individuals of any sexual orientation may wish to keep their sexual orientation a secret, but can still be vulnerable to harassment by people who know or sense what their orientation is. When the Employment Equality (Sexual Orientation) Regulations 2003 were introduced, it cannot have been the intention that an individual must have declared his or her true sexual orientation in order to establish that abuse was "on grounds of sexual orientation". All that is required is that a person's sexual orientation, whether real or supposed, was the basis of harassment directed at him or her.

Case transcript of English v Thomas Sanderson Blinds (on the BAILII website)

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