Blinded by the facts
Labour & European Law Review Weekly Issue 216 05 May 2011
The Employment Equality (Sexual Orientation) Regulations 2003 (now part of the Equality Act 2010) outlaw harassment on the grounds of sexual orientation. In Thomas Sanderson Blinds Ltd v Mr S English the Employment Appeal Tribunal (EAT) said the tribunal was right to ask about the claimant’s own perceptions and feelings to decide whether the unwanted conduct violated his dignity or created an adverse environment.
Mr English had worked for Sanderson Blinds on an agency basis for nine years, during which time he alleged that he had been subject to endless “homophobic banter”. The “tipping point” was an article in a company newsletter that was seen and read by his family in August 2005.
The tribunal and EAT said that Mr English could not argue that homophobic comments made to him amounted to harassment as none of the individuals involved believed that he was homosexual. However, the Court of Appeal disagreed, saying there was little difference between tormenting a man who colleagues believed to be gay and tormenting a man they treated as someone who was gay.
The case therefore went back to the tribunal to decide whether Mr English’s complaint would succeed under the Regulations.
Regulation 5 states that harassment occurs on the grounds of sexual orientation, 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.
Conduct shall be regarded as having that effect only if, having regard to all the circumstances, including in particular the perception of the victim, it should reasonably be considered as having that effect.
The tribunal said the key question was whether Mr English found the “comments or articles harassing within the meaning of Regulation 5.”
It said that he would have complained (or at least not remained so friendly with his “tormentors”) had the articles, banter and name calling up until August 2005 had the necessary effect on him to bring them within the meaning of the Regulation.
However it found that the August 2005 article, which had been read by Mr English’s family, really did upset him.. It therefore concluded that the article did have a degrading effect in his eyes and could objectively be seen as such. On this basis his claim succeeded, but only in relation to that one event.
However as his claim was submitted more than three months after the article was published, the tribunal determined the claim was out of time and could not succeed.
Mr English appealed, arguing that the tribunal was wrong to apply a purely subjective test to the question of whether he had been harassed prior to the August 2005 article.
However, the EAT upheld the tribunal’s decision. It concluded that there were two questions to answer before deciding whether the conduct had the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The first was whether the alleged harasser had engaged in “unwanted conduct”; and the second was whether such “unwanted conduct” was on grounds of sexual orientation
In relation to the second question this meant asking “if, having regard to all the circumstances, including the perception of [Mr English], it should reasonably be regarded as having that effect”. It agreed with the tribunal that it did not.
The EAT also agreed that, as there was no act extending over a period and no finding of any act or omission after the publication of the article in August 2005, the claim was out of time.
The case illustates that the subjective experience of the claimant has to be considered. If he or she is a willing participant in the conduct complained of then that may be evidence either that the conduct is not unwanted, or that it does not have the necessary purpose or effect to amount to harassment.