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STEPHEN ENGLISH v THOMAS SANDERSON LTD (2008)

[2008] EWCA Civ 1421

CA (Civ Div) (Laws LJ, Sedley LJ, Lawrence Collins LJ) 19/12/2008

EMPLOYMENT - DISCRIMINATION

EC LAW : HARASSMENT : HOMOSEXUALITY : SEXUAL ORIENTATION DISCRIMINATION : SCOPE OF REG.5 EMPLOYMENT EQUALITY (SEXUAL ORIENTATION) REGULATIONS 2003 : reg.5 EMPLOYMENT EQUALITY (SEXUAL ORIENTATION) REGULATIONS 2003

There had been a breach of the Employment Equality (Sexual Orientation) Regulations 2003 reg.5 where homophobic banter had been directed at a man who was not gay and who was not perceived or assumed to be so by his tormentors. What was required under reg.5 was that the claimant's sexual orientation, whether real or supposed, should have been the basis of harassment directed at him or her

The appellant (E) appealed against a decision ((2008) ICR 607) upholding a finding of the employment tribunal that the respondent former employer (T) was not liable under the Employment Equality (Sexual Orientation) Regulations 2003 reg.5 for harassing him on grounds of sexual orientation. E had alleged that for a protracted period he had been subjected by four colleagues to sexual innuendo suggesting that he was homosexual. The fact that he had been to boarding school and the fact that he lived in Brighton appeared to have been the genesis of the suggestions. E was in fact a heterosexual happily married man. He accepted that his tormentors knew that he was not gay. The issue was whether someone who was ribbed, teased or tormented by "homophobic banter" was or might be harassed within the meaning of reg.5 when (i) he was not gay, (ii) he was not perceived or assumed to be so by his fellow workers, and (iii) he accepted that they did not believe him to be gay.

HELD: (Laws L.J. dissenting) (1) The single critical assumed fact was that E had repeatedly been taunted as gay, but it did not matter whether he was gay or not. The calculated insult to his dignity, which depended not at all on his actual sexuality, and the consequently intolerable working environment were sufficient to bring his case within reg.5. The incessant mockery created a degrading and hostile working environment, and it did so on grounds of sexual orientation. Alternatively, it could properly be said that the fact that E was not gay, and that his tormentors knew it, had just as much to do with sexual orientation as if he were gay. If, as was common ground, tormenting a man who was believed to be gay but was not amounted to unlawful harassment, the distance from there to tormenting a man who was being treated as if were gay when he was not was barely perceptible. In both cases, the man's sexual orientation, in both cases imaginary, was the basis of the harassment. There were also policy reasons why the distinction should be regarded as one without a difference. Sexual orientation was not an either-or affair. Some people were bisexual, some were asexual and some, including heterosexuals, had unusual interests or proclivities. All might desire to keep their orientation to themselves but still be vulnerable to harassment by people who knew or sensed what their orientation was. It could not possibly have been the intention, when legislation was introduced to stop sexual harassment in the workplace, that such a claimant would have to declare his or her true sexual orientation in order to establish that the abuse was "on grounds of sexual orientation". What was required was that the claimant's (or someone else's) sexual orientation, whether real or supposed, should have been the basis of harassment directed at him or her. That was what had occurred in the instant case. There had therefore been a breach of reg.5. (2) (Per Laws L.J.) Harassment was perpetrated on grounds of sexual orientation only where some person or persons' actual, perceived or assumed sexual orientation gave rise to it. In this case, the reason for the harassment had nothing to do with anyone's actual, perceived or assumed sexual orientation.

Appeal allowed

Counsel:
For the appellant: Frederic Reynold QC, Marcus Pilgerstorfer
For the respondent: Shirley Bothroyd, Robert Palmer

Solicitors:
For the appellant: Dean Wilson Laing
For the respondent: Bolitho Way
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