Homophobic banter unlawful even where victim known not to be gay

In English v Thomas Sanderson Limited, Mr English, who is heterosexual, was subjected to harassment by his colleagues in the form of sexual innuendo and homophobic ‘banter’, including being called a “faggot”, because someone discovered that he lived in Brighton and had attended boarding school. He presented a claim of unlawful harassment ‘on grounds of sexual orientation’,  even though he accepted that his colleagues knew he was not gay.

A tribunal rejected the claim. In the circumstances of this case, the term ‘on grounds of sexual orientation’ only protects those who are gay or are perceived to be gay, or who are associated with someone who is gay. The EAT agreed, but the Court of Appeal allowed an appeal by a majority. Mr English was harassed because his fellow employees thought it was funny to taunt a man they knew to be heterosexual with being homosexual. It was irrelevant that Mr English was not actually gay. For a claim to succeed, sexual orientation must be the reason for the treatment and it was clearly the reason in this case. The third judge disagreed. According to him, ‘on the grounds of sexual orientation’ means that someone who actually is of, or who is perceived to be of, or who is associated with, that particular sexual orientation has to be disadvantaged by it. To determine otherwise would open up not a Pandora’s box, but a Pandora’s attic of unpredictable prohibitions which the law never intended.

While any measure to eradicate offensive behaviour from the workplace is to be welcomed, it may be stretching the law too far to say that this type of teasing equates to unlawful harassment. An appeal is being considered.