English v Thomas Sanderson Ltd

Workplace harassment may be “on grounds of sexual orientation” where an employee is repeatedly subjected to homophobic abuse, even though the employee is heterosexual and the perpetrators neither believe nor assume that the employee is gay. The conduct is characterised objectively. Its connection with sexual orientation does not depend on proving the victim’s actual orientation or the perpetrators’ belief about it.

The tribunal must decide whether the unwanted conduct violated dignity or created an intimidating, hostile, degrading, humiliating or offensive environment, and whether it should reasonably be regarded as having that effect. A fact-sensitive harassment claim should ordinarily not be reduced to an oversimplified preliminary issue.

The appellant, a heterosexual married man, alleged that colleagues had subjected him over a prolonged period to offensive homophobic taunts and innuendo. He accepted that they knew he was not gay and used the abuse as a means of tormenting him.

The Employment Tribunal determined a preliminary issue and dismissed his claim under regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003. The Employment Appeal Tribunal dismissed his appeal, holding that the conduct was not “on grounds of sexual orientation” because it was not based on any belief or assumption that he was gay.

The Court of Appeal considered whether homophobic abuse could fall within regulation 5 notwithstanding the absence of any actual, perceived or assumed homosexual orientation.

1. By a majority, the appeal was allowed. Sedley and Lawrence Collins LJJ held that repeated homophobic abuse could constitute harassment on grounds of sexual orientation even where the claimant was heterosexual and his tormentors knew that fact. Laws LJ dissented and would have dismissed the appeal.

2. Per Lawrence Collins LJ, the conduct had to be characterised objectively. Repeatedly directing an offensive homophobic epithet at an employee was capable of being conduct “on grounds of sexual orientation”, irrespective of the employee’s actual orientation or the perpetrators’ perception of it. Regulation 5(1) did not require the claimant to prove either that he was gay or that his tormentors believed him to be gay. The assumed conduct satisfied the statutory conditions because it was unwanted, violated dignity or created a degrading, humiliating or offensive environment, and should reasonably be regarded as having that effect.

3. Per Sedley LJ, the harassment depended on the sexual orientation attributed to the claimant through the taunts. The distinction between tormenting someone mistakenly believed to be gay and treating a person known to be heterosexual as if he were gay was immaterial. Applying the “why?” inquiry associated with Nagarajan, or alternatively a “but for” approach, the harassment occurred because of the sexual orientation attributed to the claimant. Regulation 5 therefore covered the conduct without any need to alter its wording to conform to European law.

4. The majority rejected the proposition that the authorities required an inquiry into whether the perpetrators genuinely thought the claimant was homosexual. Redfearn did not establish a boundary governing this materially different form of workplace harassment. Formulations developed under related discrimination legislation had to be understood in their statutory context and not treated as additional words in regulation 5.

5. All three Lord Justices expressed concern about resolving this fact-sensitive claim through an oversimplified preliminary issue. Laws LJ nevertheless considered that regulation 5 required some person’s actual, perceived or assumed sexual orientation to be a substantial cause of the conduct. The majority rejected that restricted construction on the assumed facts.

1. Court of Appeal (Civil Division): By a majority, allowed the appellant’s appeal and displaced the decisions below: [2008] EWCA Civ 1421.
2. Employment Appeal Tribunal: On 20 February 2008, dismissed the appeal from the Employment Tribunal: UKEAT/0556/07/LA.
3. Employment Tribunal: On 12 February 2007, determined a preliminary issue against the appellant and dismissed his harassment claim under regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003.