You have to be gay or out to face homophobic harassment

That was the judgment of the Employment Appeal Tribunal in the case of Stephen English -v- Thomas Sandersan Blinds.

Mr English argued that he had been subjected to homophoc harassment contrary to regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003.

Regulation 5 provides:
“5 Harassment on grounds of sexual orientation

(1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to
harassment where, on grounds of sexual orientation, A engages in unwanted conduct which
has the purpose or effect of –
(a) violating B’s dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) Conduct shall be regarded as having the effect specified in paragraph (1) (a) or (b) only if,
having regard to all the circumstances, including in particular the perception of B, it should
reasonably be considered as having that effect.

The Regulations were passed to implement the Framework Directive (No 2000/78/EC). (The Directive). Article 1 of the Directive states its Purpose:

Article 1 Purpose
The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.

And by Article 2 (3)

“3. Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 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. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.”

Mr English claimed a case of harassment that for many years he had been submitted to sexual innuendo by his work colleagues to the effect that he was homosexual. He stated that this course of conduct originated from a manager who learned that he had (a) attended a boarding school and (b) lived in Brighton. Over the years work colleagues had engaged in what was sometimes described as ‘banter’ of a homophobic nature him. The preliminary issue arose on this factual premise; that the Claimant was not homosexual, nor was he mistakenly or genuinely thought to be so by his ‘tormentors’ and that he himself fully accepted that they did not believe him to be gay.

The Employment Appeal Tribunal found that the unwanted conduct was not on grounds of sexual orientation. The homophobic banter unacceptable as it was, was a vehicle for teasing the Mr English. It was not based on their perception nor even incorrect assumption that he was gay. Leave to appeal has been given.