Veitch Penny LLP - Exeter | Crediton, Devon

Case

English v Thomas Sanderson Blinds Ltd
Court of Appeal – 19th December 2008

Issues

(1) Employment Equality (Sexual Orientation) Regulations 2003 ("the Regulations")
(2) Harassment
(3) "Banter"

Facts

Mr English was engaged by Thomas Sanderson Blinds Ltd under a contract for services between October 1996 and August 2005. In November 2005 he made a claim of harassment pursuant to Regulation 5 of the Regulations. Regulation 5 provides 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 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."

He stated that he had been subjected to sexual innuendo by colleagues stating that he was homosexual, apparently because his manager had learnt that Mr English had attended boarding school in Brighton. He had been subjected to "banter" of a homophobic nature.

A preliminary issue arose. Did Mr English's complaint fall within the ambit of Regulation 5? Mr English was not homosexual and was not mistakenly or genuinely considered to be homosexual by the perpetrators. The Employment Tribunal found that the situation fell outside the wording of Regulation 5. His appeal to the Employment Appeal Tribunal (EAT) was also unsuccessful. However, the EAT expressed their concern about its decision and gave permission to appeal.

Decision

The Court Appeal overturned the decision of the EAT. It held that the Regulations did protect Mr English.

Comments

The Court had to consider whether Mr English had been subjected to the "banter" "on grounds of sexual orientation" as per the wording of Regulation 5. It also had to consider whether the original European Directive made any difference to the assessment of this first question and whether that directive prohibited unwanted conduct merely related to sexual orientation rather than as interpreted by the tribunal and EAT.

Lord Justice Sedley, in his judgment, was of the view that the sexual orientation of an employee was immaterial. The treatment in this case had been calculated to create degrading and hostile working environment. When the legislation was introduced it was not the intention that the claimant would have to declare his or her sexual orientation in order to establish that treatment was on those grounds.

Mr English’s appeal, therefore, was allowed.


Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.