Veitch Penny LLP - Exeter | Crediton, Devon

Case

Whitehead v Brighton Marine
Employment Appeal Tribunal

Issues

(1)Employment Equality (Sexual Orientation) Regulations 2003
(2)Unfair Dismissal
(3)Harassment

Facts

This case from the Employment Tribunal in Brighton is one of the first successful claims to be brought under the Employment Equality (Sexual Orientation) Regulations 2003 (“the Regulations”) which came into force on 1st December 2003. The Regulations make it unlawful for employers to discriminate against a person or to harass them on the grounds of their sexual orientation. The Regulations provide protection for gay men, lesbians, bisexuals and heterosexuals alike.

The Claimant, Mr Whitehead, was a manager at the Brighton Peer and was a gay man. He had experienced problems with his immediate manager which had resulted in Mr Whitehead raising grievances against him. Whilst Mr Whitehead was on sick leave, another employee overheard the manager making derogatory comments about Mr Whitehead and his sexual orientation. When Mr Whitehead returned from sick leave, he was told about the comments, and that his manager had referred to him as “f*****g chutney ferret”. He then resigned and bought a claim at the tribunal for constructive dismissal and harassment contrary to the Regulations.

Decision

The Tribunal made a finding that the words the manager used were so “exceptionally offensive” to gay men that Mr Whitehead was justified in resigning even though the comments had been passed on to him by a colleague. The comments were such to amount to a breach of the implied term of trust and confidence between employer and employee. The comment was also considered to be “unwanted and violated his dignity” and accordingly was found to be harassment for the purposes of the Regulations. Mr Whitehead was awarded a total of £9,215 for unfair dismissal and injury to his feelings due to the harassment.

Comments

This ruling has established that employers will be liable for substantial damages awards for failing to take steps to prevent harassment and discrimination. It goes on to confirm that a single derogatory comment is sufficient to mount claim harassment under the Regulations.

This case also has a wider implication in that it shows the tough line tribunals are prepared to take. What in the past may have been viewed as “banter” is no longer acceptable behaviour.

Rachel Bickle – 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