Can homophobic banter be discriminatory where the victim is known to be heterosexual? The Court of Appeal decides

01/07/2009

By Nick Hobden, Partner and Head of Employment.

In the last few years, the variety of circumstances in which an act of unlawful discrimination can arise has increased significantly.

Most recently, legislation has come into force to outlaw discrimination on the grounds of sexual orientation, religion and belief and age. Furthermore, this legislation has made it unlawful not only to discriminate against a person of a particular sexual orientation, religion or age, but also someone who associates with such people or is perceived to be such a person (even if they are not).

In the case of English v Thomas Sanderson Limited, we had a situation in which an employee (Mr English) was allegedly subjected to homophobic abuse over a period of time. However, the employee himself was not gay, was not believed to be gay and indeed Mr English knew that the people who were taunting him did not believe him to be gay. So the question arose as to whether or not this could still amount to a breach of the Employment Equality (Sexual Orientation) Regulations 2003 (the "Regulations"). Regulation 5 of the Regulations makes it unlawful for a person to subject another person to harassment "on grounds of sexual orientation". But is this wording broad enough to cover a situation such as this?

In considering the matter, the three judges that made up the Court of Appeal could not agree. The aptly named Lord Justice Laws concluded that this situation was not covered by the Regulations. His decision was partly based upon the fact that he saw this as a situation in which the reason for the harassment was nothing to do with Mr English's (or indeed anyone else's) actual, perceived or assumed sexuality. Whilst the alleged harassment happened to take the form of jibes such as "faggot", the harassers could so easily have chosen another way of getting at their victim.

The other 2 judges saw the matter differently. Adopting a more straight forward approach, they concluded that in light of the fact that the alleged harassment manifested itself in the use of jibes which were homophobic in nature, this was enough to bring Mr English within the protection of the Regulations; his own sexuality and indeed the views of his harassers on this matter were irrelevant. Bearing in mind that the law clearly protects a person for this sort of "banter" if they are perceived as being gay, Lord Justice Sedley saw almost no difference between that situation and one in which the person is not actually believed to be gay at all. The conduct is the same, as is the potential result in terms of the way in which the victim is made to feel. Indeed Lord Justice Sedley expressed concern at the prospect of the law being construed in such a way as to leave a person who wished to claim discrimination, in the position of having openly to declare their sexuality (where they would not otherwise want to do so), in order to succeed in their claim. He felt this was another strong reason justifying his position.

With the Court of Appeal finding in favour of the employee, this case clearly underlines the expanding scope of discrimination law. Coupled with the decision in Coleman v Attridge Law (which potentially protects from discrimination on the grounds of disability, those people who care for a disabled person), it underlines the importance of employers thinking very carefully about the treatment of their staff and the risks that arise as a result.