Homophobic Banter

23 December 2008

The Court of Appeal decision in English -v- Thomas Sanderson Limited found that a man who is tormented by "homophobic banter" is protected by the Sexual Orientation Regulations 2003 even when (a) he is not gay, (b) he is not perceived or assumed to be gay by his fellow workers and (c) he accepts that they do not believe him to be gay.

Harassment on the grounds of sexual orientation
Regulation 5 states:

(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 1 (b) only if, having regard to all circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.

The case
Mr English claimed harassment alleging that, for a protracted period, four co-workers subjected him to sexual innuendo suggesting that he was homosexual. The teasing began when a colleague found out that he had been to boarding school and lived in Brighton. He was called names like “faggot” and endured lurid comments about him in the employer’s house magazine.

Mr English is not homosexual, was not assumed to be such by his colleagues and nor did he believe that his co-workers really thought that he was. The Employment Tribunal (“ET”) decided to proceed by determining, as a preliminary issue, whether Regulation 5 covered homophobic banter directed to a heterosexual man in such circumstances. It concluded that the Regulations did not apply. Mr English appealed and the Employment Appeal Tribunal agreed that the Regulations did not apply here. The matter has now reached the Court of Appeal. It reversed the previous decisions finding that the Regulations applied and that Mr English can make a claim. This is a significant decision but it is interesting to note that it was not unanimous and it is worth looking at the rationales used.

The Court of Appeal judgments
The Court of Appeal found that Regulation 5 does protect a heterosexual man who is tormented by homophobic banter. Sedley LJ stated that “the fact that the appellant is not gay, and his tormentors know it, has just as much to do with sexual orientation – his own, as it happens – as if he were gay”. It is accepted that tormenting a man who is believed to be gay but is not amounts to unlawful harassment. The difference in this scenario from that of tormenting a man, who is being treated as if he were gay when he is not, is not significant. In neither case is the man actually gay.

Sedley LJ goes on to refer to policy reasons why the legislation should apply in this situation. Co-workers cannot always know the sexual orientation of their colleagues: some people are neither one sexual orientation nor the other and others may choose to keep their orientation to themselves. If an individual must make clear his true sexual orientation, so as to prove that his harassment was on grounds of sexual orientation, this would not be what the law intended. The grounds for harassment must be sexual orientation but it does not matter whether the sexual orientation is real or supposed.

Lawrence-Collins LJ took a very practical approach in assessing whether the conduct was on grounds of sexual orientation. He states: “If one were to ask the question whether the repeated and offensive use of the word ‘faggot’ in the circumstances of this case was conduct ‘on grounds of sexual orientation’ the answer should be in the affirmative irrespective of the actual sexual orientation of the Claimant or the perception of his sexual orientation by his tormentors”. He goes on: “even if the Claimant is homosexual, it is obviously not for the Claimant to show that he is a homosexual, any more than the Claimant in a racial discrimination case must prove that he is Asian or a Jew.”

Laws LJ, however, dissented. He stated that, amongst others, the reason for the harassment must be the individual’s actual, perceived or assumed sexual orientation. The content of the banter concerns sexual orientation. However sexual orientation is not the reason for the harassment. Lord Justice Laws refers to the homophobic banter as the “vehicle for teasing” or tormenting the appellant.

Comment
The decision in this case is controversial, as highlighted by the length of the dissenting opinion. The case suggests that the law is heading towards a situation where it will be dangerous to have banter of any kind where there is even a slight reference to a protected class or group of people.