Elaine Banton puts sexual orientation discrimination under the spotlight
The recent decision of the Employment Appeal Tribunal (EAT) in the case of English v Thomas Sanderson Blinds Ltd [2008] All ER (D) 282 (Feb) highlights an anomaly in the law outlawing discrimination on grounds of sexual orientation. His Honour Judge Clark held that reg 5 of the Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661) does not protect individuals on the receiving end of homophobic abuse who are known to be heterosexual. In doing so HHJ Clark noted that in the face of this the regulations do not properly implement the EC Equal Treatment Directive 2000/78 which suggests that protection in such circumstances should be offered.
Stephen English, a married man with three children, claimed he had suffered relentless taunts and harassment over a number of years and had resigned after nine years as a salesman. Mr English claimed he was called “faggot” at national sales meetings, team meetings at his home and regional managers meetings. The abuse started when an area sales manager discovered that he had been to boarding school and lived in .
A preliminary issue as to whether the complaint fell within the scope of reg 5 arose on the factual premise that the claimant was not homosexual, nor was he mistakenly or genuinely thought to be so by the perpetrators of the harassment, and that he fully accepted that they did not believe him to be gay. The employment tribunal considered that Mr English’s complaint was not covered by reg 5 finding that he would only come within the scope of the regulations if he was actually gay, or perceived to be gay, or if he had been harassed for not discriminating on the grounds of sexual orientation.
On appeal the EAT upheld the tribunal’s decision. It rejected a submission made on behalf of the appellant that there was no difference between the expressions used in the Directive and the regulations. The EAT held that the phrase “on grounds of sexual orientation” found within reg 5 is narrower than the definition contained within the Directive, which precludes harassment on a wider basis, being “related to” sexual orientation. In so doing the EAT ruled that reg 5 does not properly implement the Directive. The EAT granted Mr English permission to appeal to the Court of Appeal, commenting on the “unsatisfactory state of affairs” of the mismatch between the regulations and Directive.
IMPLICATIONS
The law as it stands unquestionably covers harassment or discrimination based on incorrect assumptions about someone’s sexual orientation. For instance if an employee makes homophobic comments about a woman believing her to be a lesbian this would be unlawful even if the employee was in fact heterosexual. Hence the distinction drawn in Mr English’s case, that if his colleagues believed he was gay when taunted, he would have been protected under the current legislation.
This interesting case as well as attracting much publicity has highlighted the effects of a narrower or watered down implementation of the Directive in question. Article 1 of the Directive includes that the purpose is to put into effect the principle of equal treatment. The effect of “on grounds of ” rather than “related to” as found in Art 2(3) of the Directive can be seen to be at play here.
HHJ Clark said that if Mr English’s harassers believed he was gay he would have been protected. Why should protection from harassment be dictated by the belief of the perpetrators? Harassment often comes in the guise of banter where the intention of the perpetrator is not a defence, the issue being whether the conduct has the purpose or effect of violating, intimidating, degrading, humiliating or creating a hostile environment for the complainant on a mixed objective/subjective basis which includes the perception of the victim concerned. The assumed facts of Mr English’s case evidence a sustained pattern of abuse which may certainly have created a hostile, degrading, offensive, or humiliating environment for him on any analysis. English follows closely on the heels of a similar recent case of EOC v Secretary of State for Trade and Industry [2007] IRLR 327, where Mr Justice Burton concluded that he could not construe domestic statute in compliance with the Equal Treatment Directive 2002/73/EC, indicating that the relevant domestic legislation should be recast in order to eliminate the causation issue raised in the expression contained in the Sex Discrimination Act 1975 “on the grounds of her sex.”
The Equality and Human Rights Commission has stated that Mr English’s case “is about fair treatment in the workplace… a positive ruling would help a wide range of individuals who have suffered harassment based on out of date stereotypes.” This is an important case for the commission in terms of its remit for tackling discrimination and the fact that racial stereotypes and sexual innuendo, often go to the heart of discrimination/harassment and equal treatment issues.
It now seems likely that if the Court of Appeal in English is unable to construe reg 5 in compliance with the Directive it was intended to implement, the regulations themselves will most likely require amendment.
