Wrong footed

The Employment Equality (Sexual Orientation) Regulations 2003 render unlawful direct and indirect discrimination and harassment in the workplace on grounds of sexual orientation. The Regulations implement aspects of the EU Equal Treatment Framework Directive (the Directive), which sets out a general framework for combating discrimination in relation to sexual orientation, religion or belief, disability and age. (There is also separate legislation in force in the UK outlawing discrimination on grounds of sex, pregnancy, race, disability, age, religion or belief, married or civil partner status, or gender reassignment). Under the Directive, harassment is unlawful 'when unwanted conduct related to any of the [following] grounds [ie, sexual orientation, religion or belief, disability and age] takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment'. The wording of the UK legislation is slightly different. Instead of using the 'related to' wording of the Directive , it refers to 'unwanted conduct by a person (A) on grounds of sexual orientation which has the purpose or effect of violating a person's (B's) dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B'. For these purposes, sexual orientation means sexual orientation towards people of the same sex, people of the opposite sex, or people of the same and opposite sex. It is also unlawful to discriminate against a person on the ground of the sexual orientation he or she is perceived to have, even if that perception is false. Further, discrimination does not need to relate to an individual's own sexual orientation to breach the law. It would be unlawful, for example, for an employer to discriminate against a worker because of the sexual orientation of his relative. In the recent case of English v Thomas Sanderson, the Court of Appeal has considered whether an individual who was neither gay, nor perceived to be so, but who was allegedly the target of 'homophobic banter' at the hands of his colleagues, was nonetheless protected against harassment under the Regulations. Mr English worked for window blind manufacturer Thomas Sanderson between October 1996 and August 2005. In November 2005, he brought an employment tribunal claim complaining that he had been harassed contrary to these Regulations. He alleged that for a protracted period, he had been subjected by four colleagues at work to sexual innuendo suggesting in obvious terms that he was homosexual. Someone had discovered that he had been to a boarding school and lived in Brighton and these facts seemed to be at the centre of the suggestions. Due to this, his colleagues subjected him to homophobic abuse, calling him 'faggot'. Lurid comments were also made about him in the house magazine. He alleged that this cruel conduct drove him to leave his job. English is in fact a heterosexual married man with three teenage children. He fully accepted that his tormenters knew he was not gay and that he was married with children. When this matter came before the employment tribunal, it considered firstly whether English's complaint fell within the scope of the Regulations, given that: he is not gay; the colleagues who had engaged in the homophobic 'banter' did not believe him to be gay; and English accepted the fact that his colleagues did not believe him to be gay. The tribunal held that English's complaint did not fall within the protection of the Regulations because the treatment he received was not 'on grounds of' anyone's actual or perceived sexual orientation. It therefore dismissed his claim. English appealed, unsuccessfully, to the employment appeal tribunal (EAT). In reaching its conclusion that the unwanted conduct was not on grounds of sexual orientation, it was heavily influenced by the fact that English himself accepted that the alleged harassers did not perceive him to be gay. However, the EAT granted English leave to appeal to the Court of Appeal.