News

Homophobic banter is not always discriminatory

Release date: 23/04/2008

Nick Bone, an associate in the Employment Law team at Harvey Ingram’s Birmingham offices, comments on a recent tribunal case.

A heterosexual worker tormented for years by banter and innuendo from colleagues implying he was homosexual, because he had attended a public school and lived in Brighton, has failed to win his harassment case.

Stephen English took on Thomas Sanderson Blinds Ltd at Brighton Employment Tribunal, where it was claimed he had been subjected to years of sexual innuendo from colleagues, who suggested he was gay. The tribunal heard the source of the torment came from a manager after learning that Mr English had gone to a public school and lived in Brighton.
Mr English brought a harassment claim against his employer under the Sexual Orientation Regulations 2003. However, after hearing the facts, the tribunal reluctantly dismissed his case saying that he was not covered by current regulations - despite accepting that the banter had an impact on his dignity and had created a hostile and intimidating atmosphere at work.

Mr English’s appeal was again reluctantly dismissed, the appeal concluding that the Regulations did not protect him, since the banter was not based on a perception or even incorrect assumption that he was homosexual.

Employment law specialist Nick Bone, has been following the case. He said: "This is an interesting situation that has clearly posed a headache for the Employment Appeal Tribunal. The great irony here is that it was accepted by all parties that the claimant was not gay - despite the relentless torment - but if he had been, then there is absolutely no doubt that the tribunal would have found in his favour. In my view, the tribunal felt its hands were tied as it believed that the decision was not in the spirit of the legislation, which should be able to offer protection against this sort of banter - regardless of the claimant's sexual orientation."

This case is still not yet resolved as Mr English’s lawyers have indicated that they will be taking the case to the Court of Appeal. It therefore seems likely that the issues in this case will be looked at again in some detail. A date for the Court of Appeal hearing has not yet been set.

The Court of Appeal will have to consider the implementation of EC law by the UK Government. The EC Equal Treatment Framework Directive 2000 provides that harassment is unwanted conduct “related to” sexual orientation, where as the Sexual Orientation Regulations define harassment as unwanted conduct “on the grounds of” sexual orientation. As the homophobic banter in this case was not based on the perception of the employee or on an incorrect assumption that Mr English was homosexual, the unwanted conduct was not "on the grounds of" his sexual orientation.

If the Court of Appeal finds that UK law fails to properly implement the EC Directive, this case could have far reaching consequences for discrimination law, not only sexual orientation, but also on age, disability and religion or belief. A change to the definition of harassment to bring it in line with the EC Directive could mean that employees who are teased in relation to an area of discrimination might be entitled to bring claims. Even if the legislation is not changed, the case should be read with caution. Employers should still take any banter regarding sexuality seriously and consider taking disciplinary action against perpetrators in order to avoid claims of constructive unfair dismissal and claims under the Protection From Harassment Act, as well as psychological personal injury claims.