Court of Appeal

Published January 5, 2009

English v Thomas Sanderson Ltd

Before Lord Justice Laws, Lord Justice Sedley and Lord Justice Lawrence Collins

Judgment December 19, 2008

Harassment at work on the ground of sexual orientation could occur irrespective of the victim’s actual sexual orientation or the tormentors’ perception of his orientation.

The Court of Appeal so held in a reserved judgment (Lord Justice Laws dissenting) allowing an appeal by Stephen English from the dismissal by the Employment Appeal Tribunal (Judge Peter Clark, Mr H. Singh and Mr S. Yeboah) on February 20, 2008 ([2008] UK EAT 0556-07-2002) of his appeal from the dismissal by a Brighton Employment Tribunal on September 12, 2007, on a preliminary issue, of his claim of harassment against Thomas Sanderson Ltd under the Employment Equality (Sexual Orientation) Regulations (SI 2003 No 1661). The court remitted the case to the employment tribunal.

The claimant, engaged under a contract for personal services between October 1996 and August 2005, alleged that four work colleagues subjected him for a protracted period to sexual innuendo suggesting he was homosexual, that such cruel and puerile conduct drove him to leave his job, and he was in fact a heterosexual and happily married man with three daughters which his tormentors were perfectly aware of.

M Frederic Reynold, QC and Mr Marcus Pilgerstorfer for Mr English; Ms Shirley Bothroyd and Mr Robert Palmer for the employer.

LORD JUSTICE LAWS, dissenting, said that it was common ground that discrimination might occur where the perpetrators of the conduct complained of believed that the victim was gay even if he was not; and also where a victim was treated detrimentally because he had not followed an instruction to discriminate against somebody else: Showboat Entertainment Centre Ltd v Owens ([1984] ICR 65).

It was a necessary premise of the claimant’s case that harassment under regulation 5 might occur even though no person’s actual, perceived or assumed sexual orientation had anything to do with the case.

His Lordship did not think that the line of reasoning in the Showboat case should be extended further than the statutory policy strictly required. Harassment was perpetrated on the ground of sexual orientation only where some person’s or persons’ actual, perceived or assumed sexual orientation gave rise to it; was a substantial cause of it.

The claimant’s case confused the reason for the conduct complained of with the nature of that conduct. On the assumed facts, the reason for the harassment was nothing to do with anyone’s actual sexual orientation; the thoroughly nasty conduct, so-called “homophobic banter”, was the vehicle for tormenting the claimant, and in the circumstances sexual orientation was not the ground of the conduct complained of.

The claimant also submitted that regulation 5 could and should be read down so as to give effect to the broader scope which was inherent in article 2(3) of the Framework Directive (Council Directive 2000/78/EC (OJ 2000 L303/16)) and attention was drawn to Coleman v Attridge Law (Case C-303/06) (The Times July 29, 2008; [2008] ICR 1128 paragraph 38).

It was clear, in his Lordship’s view, that domestic and European law alike vouchsafed that harassment or discrimination on the ground of sexual orientation or race or disability was not limited to situations where the victim was mistreated because of his or her own condition.

But the extended instances in the two cases above were all connected with someone’s actual, perceived or assumed condition; that condition was an operative cause of the mistreatment in question.

His Lordship added that the employment tribunal should approach the use of a preliminary issue procedure with circumspection in any case where the result might be influenced by the details of the facts as well as what might be called the main story.

LORD JUSTICE SEDLEY said that, on the assumed facts, the calculated insult to the claimant’s dignity, which depended not at all on his actual sexuality, and the consequently intolerable working environment were sufficient to bring his case both within regulation 5 and within the Equal Treatment Directive (Council Directive 76/207/EEC (OJ 1976 L39/40)).

Alternatively, it could be properly said that the fact that the claimant was not gay, and that his tormentors knew it, had just as much to do with sexual orientation, his own, as it happened, as if he were gay.

If, as was common ground, tormenting a man who was believed to be gay but was not amounted to unlawful harassment, the distance from there to tormenting a man who was being treated as if he were gay when he was not was barely perceptible. In both cases the man’s sexual orientation, in both cases imaginary, was the basis or ground of the harassment.

It could not possibly have been the intention, when legislation was introduced to stop sexual harassment in the workplace, that a claimant had to declare his or her true sexual orientation in order to establish that the abuse was on the ground of sexual orientation.

What was required was that the claimant’s, or someone else’s sexual orientation, whether real or supposed, should have been the basis of harassment directed at him or her. That was what was going on in the present case, even on the limited facts as assumed.

LORD JUSTICE LAWRENCE COLLINS said that, even on the assumed facts, the proper construction of regulation 5 led to the conclusion that there was harassment on the ground of sexual orientation because the conditions in the regulation were satisfied.

In a case like the present, even if the claimant were homosexual, it was obviously not for him to show that he was homosexual, any more than a claimant in a racial discrimination case had to prove that he was Asian or a Jew.

There was nothing in the cases to require the court in the present type of case to inquire whether the maker of offensive homophobic statements actually thought that the victim was homosexual. The natural meaning of regulation 5 was sufficient to make such an inquiry irrelevant.

Solicitors: Dean Wilson Laing, Brighton; Bolitho Way, Portsmouth.

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