Homophobic banter in the workplace amounts to unlawful harassment according to the Court Appeal, regardless of whether the victim is heterosexual. The ruling of the case ‘English v Thomas Sanderson Ltd (2008 EWCA Civ 1421)’ is likely to open the proverbial Pandora’s box, as the decision will of course cause major consequences for both employers and UK discrimination law.
English was a married man with three teenage children and was not gay. He presented a claim of harassment on the ground of sexual orientation, which is strictly prohibited by the Employment Equality (Sexual Orientation) Regulations 2003. He stated that he was subjected to offensive banter by four colleagues who regularly referred to him as ‘faggot’ and other derogatory homophobic terms although English accepted that they knew he was not gay. The banter arose purely because he had attended a boarding school and lived in Brighton.
The claim was originally rejected by both the employment tribunal and the employment appeal tribunal on the grounds that the treatment he received was not due to him being, or perceived to be homosexual. Eventually the EAT noted that the EU equal treatment framework directive, from which the UK’s regulation Stem, prohibits unwanted conduct “related to” sexual orientation. This showed that the European law had not been implemented correctly which then allowed English to appeal against the decision.
The outcome of this case throws a new issue into the equation – one which employers need to take into consideration when training staff as they will be held responsible for the actions of their employees. It is vital that employees understand the types of behavior and terminology that would be considered as harassment and discrimination. Homophobic harassment is illegal whether the person subjected to it is gay or not.