Homophobic abuse is unlawful regardless of victim's sexuality, court rules

Stephen English took a case against his employer Thomas Sanderson Ltd under laws derived from a European Union directive protecting against harassment on the grounds of sexual orientation.

English was a married man with three teenage children and was not gay. His tormentors knew this and he accepted that they knew this and that nobody actually believed him to be gay.

When his workmates found out that he had gone to boarding school and now lived in Brighton, though, English was subjected to abuse about homosexuality. He was called a 'faggot' and was twice the subject of lurid comments in the house magazine.

He left his job and later brought a case for harassment against the company to the Employment Tribunal. He claimed that the long period of sexuality-related abuse he suffered was harassment under 2003's Employment Equality (Sexual Orientation) Regulations. These Regulations implement the EU's Equal Treatment Framework Directive.

Regulation 5 says that harassment is behaviour by which "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."

English claimed that the treatment he received constituted harassment as defined in Regulation five, but the Employment Tribunal did not agree. It said that to rule in English's favour would extend the Regulations further than any case had to date.

The Employment Appeals Tribunal (EAT) agreed that it was not its job to extend the Regulations, but it did say that the Regulations did not properly implement the EU Directive, so allowed English to appeal to the Court of Appeal.

The Directive says that harassment is behaviour 'related to' someone's sexual orientation, whereas the Regulations say it is behaviour 'on the grounds of' that orientation. The EAT said that since English was not gay and his tormentors knew that, homophobic abuse could not be said to be 'on the grounds of' his sexual orientation, and that it could not rule in his favour.

The Court of Appeal ruled that the abuse did come within the UK Regulations.

"In my judgment it did not matter whether he was gay or not," wrote one of the three judges to hear the case, Lord Justice Sedley, in his ruling. "The calculated insult to his dignity, which depended not at all on his actual sexuality, and the consequently intolerable working environment were sufficient to bring his case both within Regulation 5 and within the 1976 Directive. The incessant mockery ('banter' trivialises it) created a degrading and hostile working environment, and it did so on grounds of sexual orientation.

"It can be properly said that the fact that the appellant is not gay, and that his tormentors know it, has just as much to do with sexual orientation – his own, as it happens – as if he were gay," said the ruling. "If, as is common ground, tormenting a man who is believed to be gay but is not amounts to unlawful harassment, the distance from there to tormenting a man who is being treated as if he were gay when he is not is barely perceptible."

Lord Justice Sedley also said that there were policy reasons why English should win the case. The application of discrimination laws should not be dependent on an individual placing themselves in one or other strict definition of their condition, he said.

Sexuality, he said, is a nuanced issue, and people may identify with a number of sexual orientations. Some people will wish to keep their sexuality private and that right must be respected, he said. This would not be possible if protection from homophobic harassment is dependent on whether someone is gay or not.

"It cannot possibly have been the intention, when legislation was introduced to stop sexual harassment in the workplace, that such a claimant must declare his or her true sexual orientation in order to establish that the abuse was 'on grounds of sexual orientation'," said Lord Justice Sedley. "The case would have been exactly the same if Mr English had elected, for whatever reason, to remain silent about his actual sexual orientation – for example because he took the principled position that it was nothing to the point. And the same would be the case if he were actually gay or bisexual but preferred not to disclose it."

Lord Justice Lawrence Collins also said that the law must protect against homophobic abuse regardless of whether or not the subject of the abuse was gay.

"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 said.

The appeal was upheld by a majority, but the third judge, Lord Justice Laws, disagreed with the other two.

"The reason for the harassment was nothing to do with anyone's actual, perceived, or assumed sexual orientation," said Lord Justice Laws. "It happened to take the form of 'homophobic banter' so called, which was thus the vehicle for teasing or tormenting the appellant. In those circumstances sexual orientation was not the grounds of the conduct complained of."