Until recently, a person needed to be gay to be protected against homophobic abuse in the workplace. This position has changed in light of a new decision in the Court of Appeal. Charles Price advises employers on how to minimise the risks.

The Court of Appeal has decided that the Sexual Orientation Regulations 2003 protect a heterosexual man who is repeatedly tormented by homophobic banter. 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. The banter arose purely because he had attended a boarding school and lived in Brighton.

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.

The Court of Appeal ruled that the abuse did come within the UK Regulations. Lord Justice Sedley, commenting on the proposition that you had to be gay in order to be harassed under the regulations, stated:

“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. 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.”

With discrimination claim compensation unlimited in value and employers often being held responsible for the actions of employees, it is a prudent employer who trains employees in the types of behaviour and comments, which can constitute harassment and discrimination. The general rule should promote a common sense approach and warn against any behaviour which causes offence.

The subject and type of behaviour targeted in the above case may well not be seen as an obvious form of harassment along with types of age discrimination, for example, and for that reason it is recommended that the workforce is educated in this area of the law.

All managers at least should be given some equality and diversity training, so that they recognise different forms of discrimination and harassment and know what to do when they encounter it in their teams.

In my experience, although most individuals have a good instinct on the types of behaviour which can offend, they often seem surprised at what can be deemed as harassment in a tribunal. Role plays based on real-life tribunal cases followed by questions are a good way of getting the message across in an interactive way. Questionnaires are also effective in involving employees and can be essential when assessing the sort of problems that employees are facing in this area.

Unfortunately, some employees will express the view that the relatively new law on discrimination is political correctness gone mad but with good training these ideas can be put to bed. Happily, the workforce is becoming more diverse and people are learning to empathise with minorities.

Another recommendation for employers avoiding discrimination claims is to commission an audit on the types of anti-discrimination training and procedures undertaken in the business. ACAS, the government’s conciliatory body, has a useful list of tools for this purpose on its website.

Charles Price is a Barrister. For more information, click here: www.charlesprice.net.