Thomas Sanderson Blinds Ltd v English

Harassment on grounds of sexual orientation requires unwanted conduct, a connection with sexual orientation, and conduct having the statutory purpose or effect of violating dignity or creating a prescribed adverse environment. Where harassment is based on effect, the tribunal must consider the claimant’s genuine perception and feelings, but must then apply the objective control in regulation 5(2): it must be reasonable, having regard to all the circumstances, for the claimant to have experienced that effect. There is no general rule that reciprocal workplace banter either always does, or never does, constitute harassment. A review is intended to correct procedural errors where a party lacked a fair opportunity to present a substantive point. It is generally inappropriate where the party had that opportunity but chose not to advance the point.

Mr English, a heterosexual employee working under a sales agency agreement, alleged prolonged homophobic banter and innuendo by colleagues of Thomas Sanderson Blinds Ltd. The Employment Tribunal found that only an article published in August 2005 constituted harassment, but held that the claim was out of time. The Claimant’s appeal concerned the legal approach to harassment and limitation.

The Tribunal later reviewed its judgment and upheld a direct discrimination claim based on constructive dismissal, treating an earlier issue as still outstanding. The Respondent appealed against that review decision. The Employment Appeal Tribunal therefore considered both the original harassment judgment and whether the review had been properly granted.

1. Claimant’s appeal dismissed; Respondent’s appeal allowed. The review judgment dated 12 March 2010 was set aside.
2. For harassment under regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003, the tribunal should address, as appropriate, whether there was unwanted conduct, whether it was on grounds of sexual orientation, and whether it had the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
3. In an effect case, the claimant’s perception is central because the proscribed consequences concern the claimant’s feelings. Regulation 5(2) nevertheless imposes an objective control. The tribunal must consider whether, having regard to all the circumstances, including the claimant’s perception, it was reasonable for the claimant to experience the proscribed effect. The tribunal was therefore entitled to examine Mr English’s own perceptions and feelings.
4. The Tribunal had omitted an express finding on whether some conduct was unwanted, but that omission did not invalidate its decision because the Tribunal was entitled to conclude that the conduct did not have the prohibited effect. The finding that the August article was the only unlawful harassment meant there was no continuing act extending into the limitation period under regulation 34(4)(a).
5. There is no general rule governing reciprocal homophobic or sexist workplace language. The outcome depends on applying the statutory test. Where colleagues engage in similar conduct while remaining genuinely friendly, a tribunal may find that the conduct did not have the prohibited effect, provided it applies the correct test.
6. The review was wrongly granted. Issue A2 had not been argued at the September 2009 hearing; constructive dismissal had expressly been disavowed in the Claimant’s earlier skeleton argument; and the Tribunal had dealt with the case actually presented. Under the guidance in Trimble v Supertravel Limited and Lindsay v Ironsides Ray & Vials, review corrects procedural unfairness where a party lacked a fair opportunity to present a substantive argument. It is not ordinarily available to provide a second opportunity to advance an unargued case.
7. The Tribunal should have directed itself to whether it was just and equitable to review the judgment. On the facts, it would have been bound to conclude that there were no good grounds for review. The EAT expressed no opinion on whether the agency agreement contained an implied term of trust and confidence or whether the Court of Appeal’s harassment reasoning applied to direct discrimination.

• Court of Appeal: In English v Thomas Sanderson Blinds Limited [2009] ICR 543, held on a preliminary issue that a claimant need not be homosexual, nor believed to be homosexual, to fall within regulation 5(1) of the Employment Equality (Sexual Orientation) Regulations 2003.
• Employment Tribunal: Following the full hearing, found only the August 2005 article to constitute harassment and dismissed the claim as out of time. On review, it upheld a direct discrimination claim based on constructive dismissal.
• Employment Appeal Tribunal: Dismissed the Claimant’s appeal against the original judgment, allowed the Respondent’s appeal against the review judgment, and set that judgment aside.