No Homophobic Harassment Where Claimant Engaged in Similar Conduct

A man who succeeded in his argument that homophobic workplace banter directed at a heterosexual worker could constitute harassment, under Regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003, has lost his claim because the Employment Appeal Tribunal (EAT) found that he had failed to demonstrate that the conduct of which he complained did have the proscribed consequences (English v Thomas Sanderson Blinds Ltd.).

Mr English, who is married with three children, worked for Thomas Sanderson Blinds Ltd. under an agency agreement. He claimed that he had been subjected to banter and innuendo of a homophobic nature over a protracted period, even though he accepted that his tormentors did not mistakenly or genuinely believe that he was gay.

Regulation 5 defines harassment as unwanted conduct towards another ‘on the grounds’ of sexual orientation, which violates that person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. The conduct will only be considered as having that effect if, taking into account all the relevant circumstances, including the claimant’s own perceptions and feelings, it is reasonable for the victim to take offence.

The Employment Tribunal (ET) heard evidence that the atmosphere in the workplace was one in which inappropriate banter went unchecked. Articles in the company’s internal magazine had portrayed Mr English as a gay man and the expressions used to describe him were ‘distasteful, demeaning and degrading’. However, Mr English had himself penned a number of articles which the ET described as ‘riddled with sexist and ageist innuendo’, and was found to have indulged in equally offensive behaviour. Furthermore, he had remained friendly with his alleged tormentors. On the evidence, the ET found that the conduct he complained of did not amount to harassment.

The EAT followed the approach laid down in the case of Richmond Pharmacology v Dhaliwal, which gave valuable guidance on the harassment provisions contained in the various statutes and regulations which preceded the Equality Act 2010. The EAT criticised the ET for failing to decide which, if any, of the conduct of Mr English’s colleagues was unwanted. However, this did not render its judgment faulty. The ET was entitled to reach the conclusion it did as long as it applied the correct statutory test, which in substance it had. Although the proscribed consequences are, of their nature, concerned with the feelings and perceptions of the complainant, which could be described as introducing a ‘subjective’ element to the proceedings, the overall criterion is objective because what the ET is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable, based on the individual facts of the case, for him to do so. In Mr English’s case, it was not.