Sticking point

In Thomas Sanderson Blinds v English, Mr English brought a claim for harassment on grounds of sexual orientation under the Employment Equality (Sexual Orientation) Regulations 2003 (the Regulations). English was not gay and his work colleagues did not perceive him to be gay. However, his colleagues had subjected him, over a protracted period of time, to homophobic banter and innuendo about attending boarding school and living in Brighton. In 2009, a landmark ruling by the Court of Appeal held that English's actual and perceived heterosexuality did not take him outside the protection of the Regulations. However, the case was sent back to the employment tribunal for a substantive hearing as to whether English had in fact been harassed. The question for the tribunal was whether the treatment to which he was subjected fell within the definition of harassment under the Regulations. The statutory test for harassment is now within The Equality Act 2010, which replaced the Regulations and other discrimination legislation. The test has remained substantially the same as that in the Regulations and of course applies across the various strands of discrimination. The Regulations define harassment as "unwanted conduct on grounds of sexual orientation which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them". English's claim was an 'effect claim' – ie, that his colleagues' behaviour had the effect of violating his dignity or creating an adverse environment for him. The Regulations made clear that, for an effect claim to succeed, the conduct complained of should "having regard to all the circumstances, including the perception of the alleged victim" reasonably be considered as having that effect. The tribunal found that harassment did occur in respect of an article written about English in an internal newsletter. However, this claim had not been brought within the requisite time period and so could not proceed. The majority of English's claims, relating to other incidents of homophobic banter, failed. Even though the tribunal accepted that English had been subjected to "disrespectful, demeaning and degrading expressions", it found that they did not fall within the definition of harassment. In rejecting the claim, the tribunal relied on previous case law and considered English's feelings and perceptions. It found that English's own behaviour in the workplace had been offensive, including discriminatory banter and innuendo. He had also remained good friends with the alleged harassers and had not complained about any of their conduct (apart from the newsletter article). In the circumstances, the tribunal found that English could not have reasonably considered his colleagues' conduct to have violated his dignity or created an adverse environment. English appealed against this decision on the basis that the tribunal had wrongly adopted a purely subjective test in finding that he had not suffered harassment. The employment appeal tribunal (EAT) rejected this. It backed the approach of the tribunal and the fact it had kept in mind the feelings of the "victim". Advice to employers English's involvement in workplace banter was clearly a factor in the company successfully defending the harassment claim. However, the EAT found that no general rule applied where fellow workers use language relating to a characteristic protected by discrimination law (in this case sexuality). Much will depend on the facts, and the EAT commented that in many cases both employees using such language will have committed conduct having the effect of violating the dignity or creating an adverse environment for the other. There is also scope, even in an endemically offensive working environment, for a 'tipping point' argument – in this case, for example, the writing of the newsletter article. There are significant risks for an employer allowing an environment of persistent workplace banter to go unchecked, even if initially there appears to be a level playing field between employees. Employers should offer all employees protection through clear dignity at work and harassment procedures and seek to promote a general culture of respect and tolerance. Beth Unwin is senior legal adviser at manufacturers' organisation EEF: www.eef.org.uk