Veitch Penny LLP - Exeter | Crediton, Devon

Case

English v Thomas Sanderson Blinds Ltd
Employment Appeal Tribunal – 20 February 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 was 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 so Mr English appealed to the Employment Appeal Tribunal (EAT). He alleged that the Tribunal’s decision was incorrect and that the Regulations had not been transposed correctly from the original European Directive.

Decision

The appeal would be dismissed. The conduct by the perpetrators was not on grounds of sexual orientation or their perception of it. The homophobic banter was an unacceptable vehicle for teasing the Claimant but it not was based on his sexual orientation or a perception of it.

Comments

The EAT expressed some concern about the basis for their refusal and accordingly permission to the Court of Appeal was granted. The EAT noted that the Equality & Human Rights Commission had already established in law that the European Directive relating to the Sex Discrimination Act had been incorrectly implemented. They were satisfied, therefore, that by extension the Regulations at issue here were also improperly implemented. The EAT went on to state that the outcome of the hearing may well have been different if the original Directive had been considered. This claim was allowed to continue in order to test the decision before the Court of Appeal


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.