The EAT has held that a heterosexual man who was subjected to homophobic comments at work did not suffer harassment under the Employment Equality (Sexual Orientation) Regulations 2003, where he gave as good as he got and remained friends with his alleged tormentors throughout the alleged harassment (Thomas Sanderson Blinds Ltd v English).
The Court of Appeal had previously held that the Regulations could apply even though Mr English was not gay, and nor did his colleagues think he was gay. This allowed a full employment tribunal hearing on whether he had, in fact, suffered harassment, to go ahead. His complaint centred on an article written about him in an internal newsletter and being subjected to taunts and derogatory remarks from fellow employees. However, he had remained friends with his tormentors throughout and he had himself written a number of articles 'riddled with sexist and ageist innuendo'.
Harassment under the 2003 Regulations is conduct which is carried out on the grounds of sexual orientation, is unwanted and has the purpose or effect of violating someone's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. The test requires the claimant's own perceptions and feelings to be explored to decide whether the effect of the unwanted conduct was to violate his or her dignity or create an adverse environment. Then it has to be decided whether or not it was reasonable for the victim to hold this feeling or perception and if it is, then the conduct complained of will amount to harassment.
The EAT held that the employment tribunal had been correct to take into account Mr English's own perceptions and feelings when deciding whether the conduct of his colleagues had had the effect of violating his dignity. There was no general rule to be applied in circumstances such as these, where work colleagues made comments relating to a protected characteristic against each other. The EAT held that although the test was objective, the subjective response of the alleged victim was to be kept "firmly in mind". It is important to look at the effect of the conduct. In this case, Mr English was as abusive to co-workers are they were to him, but none of this appeared to have the effect of upsetting him in any way. The conduct complained of had not had the effect of harassing him and his claim failed.
Impact on employers
- This case serves as a warning to workers and employees who wish to bring claims for harassment that, if they have themselves taken part in the ‘unwanted conduct’, such as banter, they may find it difficult to succeed. Employers should consider pointing this out in their anti-harassment policy.
- On receipt of a harassment complaint employers should interview the complainant to record full details of the alleged behaviour and the effect of such behaviour on the complainant. Statements should also be taken from colleagues who witnessed the behaviour and these may also help to establish the response of the complainant to the behaviour complained of.
- In this case, employees were clearly given too much freedom as to what they could write in the company newsletter. Employers should monitor these publications to ensure that offensive material is not being published and distributed.
- Employers should remind staff that comments of a discriminatory nature have no place in the workplace. Even something which is passed off as friendly banter could eventually lead to a claim being made against employers.
- It should be noted that the Equality Act 2010 has superseded the Regulations, but the harassment provisions are substantially the same.