Definitions of Harassment in Workplace Re-Examined

A recent Court of Appeal decision has potentially changed the face of UK discrimination law. In the case of English v Thomas Sanderson Limited 2008 EWCA Civ 1421, the Court of Appeal made the decision that the homophobic taunting that was repeatedly aimed at an employee could, in fact, be determined as harassment under the Employment Equality (Sexual Orientation) Regulations 2003. This may not seem like an important case, and you may well be asking why this decision could potentially change the face of UK discrimination law? Well, the answer is that this decision was made by the Court of Appeal even though the victim was not gay; his tormentors did not perceive him to be gay and he knew that his tormentors did not perceive him to be gay.

The implications from such a decision are wide-ranging, and have particular relevance for other employees who are being victimised in a similar manner. UK discrimination law contains similar definitions of harassment in the areas of race, religion (or belief systems), and age legislation to the definition used in regards to sexual orientation that the victim of the aforementioned case won the Court of Appeal decision upon. Consequently, this decision opens up the possibility that other employees in the UK may be able to make a claim to the courts that harassment has taken place and that they have been the victim despite the fact that the alleged harassment is not on the grounds of that particular individual’s sexual orientation, race, religion, age, or any other area covered by UK discrimination law. However, the legislation regarding the issue will not be made clear until an impending Equality Bill has been passed.

The aforementioned case involves an employee named Mr English, who was in the employment of a company called Thomas Sanderson Ltd. Mr English stated in a claim to the Employment Tribunal in November 2005 that he had been harassed on the grounds of sexual orientation. He told the Employment Tribunal that he was subject to homophobic jokes and banter as a result of the place he resided – Brighton – and the fact that he lived in Brighton. Mr English, however, was not a homosexual. The Employment Tribunal judged the claim upon the grounds of the Employment Equality (Sexual Orientation) Regulations 2003. Under section 5(1) of the Regulations, harassment is defined as ‘unwanted conduct by person (A) on the grounds of sexual orientation, which has the purpose or effect of violating a person’s (person B) dignity, or creating an intimidating, hostile, degrading, humiliating, or offensive environment for person (B).’

The Employment Tribunal found that Mr English’s claim were not covered by the Regulations, and dismissed his claim. This was because he was not gay, his colleagues did not perceive or assume him to be gay, and he accepted that his colleagues did not perceive or assume him to be gay. Therefore, the taunting was not on the grounds of his actual or perceived sexual orientation. Mr English appealed this decision to the Employment Appeal Tribunal who dismissed his appeal. He then appealed to the Court of Appeal, which had been granted by the Employment Appeal Tribunal on the grounds that the Regulations did not allow for claims regarding treatment relating to sexual orientation. Instead, they only allowed for claims regarding treatment on the grounds of sexual orientation.

The Court of Appeal found in favour of Mr English’s appeal by majority. They did this due to a number of factors, including that he was taunted as if he were gay, and the treatment he received was in relation to sexual orientation, despite the knowledge of the tormentors that he was not gay. As a result of this, it is likely that the forthcoming Equality Bill will expand upon the current definition of harassment on UK discrimination law, allowing other victimised employees a chance of making a claim to the courts. If you are one such victim, however, it is important to seek good, professional legal advice before deciding which route to take in relation to making a claim.

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