Blindingly straight

English v Thomas Sanderson Blinds Ltd

The Employment Equality (Sexual Orientation) Regulations 2003 outlaw harassment on the grounds of sexual orientation. The Court of Appeal has just decided in English v Thomas Sanderson Blinds Ltd that they can protect a heterosexual man who everyone knew was not gay.

Basic facts

Mr English had worked for Sanderson Blinds on an agency basis from October 1996 to 26 August 2005. During that time he alleged that he had been subject to endless “homophobic banter” which eventually drove him to leave his job.

Mr English said this amounted to harassment and was contrary to the sexual orientation regulations although he himself was not homosexual, nor did any of his colleagues actually think he was. Mr English himself was aware that his colleagues did not think he was gay.

Relevant law

Regulation 5 states that harassment on the ground of sexual orientation occurs when someone engages in unwanted conduct which violates the other person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them.

Tribunal and EAT decisions

The tribunal said that Mr English could not be deemed a victim of harassment under regulation 5 as he was not homosexual himself, nor was he perceived as homosexual by his “harassers”. Mr English was also not being harassed because he had refused to discriminate against someone else because of their sexual orientation.

Mr English appealed, arguing that the discrimination derived from the fact that his employers perceived him as having stereotypical characteristics which they associated with a gay person.

But the EAT agreed with the tribunal and said that regulation 5 could not give Mr English the protection he sought. It 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.”

Court of Appeal decision

But a majority of the Court of Appeal has now disagreed. It said that it was irrelevant whether Mr English 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 Regulation 5 ". The fact that Mr English’s colleagues knew he was not gay "has just as much to do with sexual orientation – his own, as it happens – as if he were gay".

And if it was unlawful harassment to torment a man whom others believed to be gay, “the distance from there to tormenting a man who is being treated as if he were gay when he is not is barely perceptible”. In both cases the man's (imaginary) sexual orientation formed the basis of the harassment.

The Court said it was also important for policy reasons why the Court should not make a distinction between a scenario in which someone was believed to be gay and someone who was being treated as though they were gay.

It said that people (whatever their sexual orientation) may have “unusual interests or proclivities” that they want to keep to themselves, but who may be vulnerable to harassment by people who know about them. “It cannot possibly have been the intention, when legislation was introduced to stop sexual harassment in the workplace that such a claimant must declare his or her true sexual orientation in order to establish that the abuse was "on grounds of sexual orientation".

What is required, plain and simple, is that the claimant's (or someone else's) sexual orientation, whether real or supposed, was the basis of the harassment that they had to endure. There was therefore no need for courts to look for “motive or purpose or cause and effect”.