Homophobic Banter - Court of Appeal Decision

It has been a busy few months and since the judgement was handed down in December I have been meaning to write an article on what is now a landmark decision in relation to sexual orientation and homophobic banter.

In February 2008 the EAT held that the Employment Equality (Sexual Orientation) Regulations 2003 do not protect a hetrosexual man who is repeatedly taunted by homophobic banter when he is not homosexual and furthermore the perpetrators know that the victim is not homosexual.

The regulations prevent discrimination and harassment on the grounds of sexual orientation. It is well known that the meaning of 'sexual orientation' extends to perceived sexual orientation and this is where the difficulty in this case arises. The perpetrators did not actually perceive the victim to be homosexual, in fact they openly accepted that he was not but still persisted in tormenting him nonetheless. Of course given that the EAT had no doubt with some regret held that he was not protected by the regulations he appealed to the Court of Appeal.

The Court of Appeal has overturned the EAT's decision in English v Thomas Sanderson Ltd.

By a majority, the Court of Appeal held that the Sexual Orientation Regulations 2003 do protect a heterosexual man who is repeatedly tormented by homophobic banter (including names such as “faggot”) when (a) he is not gay, (b) he is not perceived or assumed to be gay by his tormentors, and (c) he accepts that they do not believe him to be gay. The banter arose purely because he had attended a boarding school and lived in Brighton.

Sedley LJ speech distilled the law consisely when he ruled at para 40:

"I particularly question the view that the word "grounds" imports more than is postulated by Lord Nicholls' question in Nagarajan: why did the other employees harass the claimant? It is not necessary to demand a logician's or a lawyer's answer by looking for motive or purpose or cause and effect. If the harassment has was based on his sexual orientation, whether real or imagined, the question "Why?" is answered. If one uses the "but for" test adopted by the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751, then but for the sexual orientation they chose to attribute to him the appellant's fellow employees would not have harassed him. Even if the entirety of the assumed facts is taken to be material and a cause-and-effect test is applied, the claimant was harassed because his fellow employees thought it was funny to taunt a man they knew to be heterosexual with being homosexual. Whichever approach is taken, the case in my judgment comes within the legislative intent, both domestically and under the Directive: the claimant was being harassed on grounds of sexual orientation".

This is an important judgement and one that should prompt HR Directors and Owner Managers to review their equal opportunities policies as a matter of urgency.

If you should need any further guidance then please contact me on gda@hrlegalpartners.com or 01942 252 802.