English v Thomas Sanderson Blinds Ltd

The Employment Equality (Sexual Orientation) Regulations 2003 outlaw harassment on the grounds of sexual orientation. However in English v Thomas Sanderson Blinds Ltd, the Employment Appeal Tribunal (EAT) said, that the regulations could not 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” simply because he had gone to a boarding school and lived in Brighton.

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. Even Mr English himself was aware that his colleagues did not think he was gay in reality.

Relevant law

Regulation 5 states that:

(1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on grounds of sexual orientation, A engages in unwanted conduct which has the purpose or effect of –

(a) violating B’s dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) Conduct shall be regarded as having the effect specified in paragraph (1) (a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.

Article 2 (3) of the European Equal Treatment Directive states:

“Harassment shall be deemed to be a form of discrimination … when unwanted conduct … takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.”

Tribunal decision

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 England appealed on the basis he should be afforded protection under regulation 5 as the discrimination that had occurred derived from the fact the employer perceived him as having stereotypical characteristics which they associated with a gay person.

EAT decision

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.”

The EAT also drew reference to a successful claim by the Equal Opportunities Commission about the harassment provisions in the Sex Discrimination Act not properly implementing the European directive.

The EAT concluded that “the protection afforded to Mr English by the domestic regulations is narrower than that which the directive provides”. Unfortunately though this did not help Mr English as he could not rely directly on the directive against a private company.

It did, however, give him leave to appeal to the Court of Appeal to allow him to test this decision.