Sexual orientation

Case 9: The facts

Mr English claimed he was subjected to protracted harassment by four colleagues comprising sexual innuendo suggesting he was homosexual. English accepted that his colleagues knew he was not gay and that he was a happily married heterosexual man with three teenage children. The root of the abuse was stereotyping arising from the fact that he had been to boarding school and lived in Brighton. He brought a claim for harassment “on grounds of sexual orientation” under regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003. At a preliminary hearing, the tribunal decided the law could not cover English’s claim. It said that the Regulations covered the situation where someone is harassed because they are wrongly perceived to be gay, but not where they know he is not gay. English lost his appeal to the EAT, and appealed again to the Court of Appeal (CA).

The ruling

The CA upheld the appeal by a majority decision, saying that it did not matter whether he was gay or not. On the facts assumed for the purposes of the preliminary hearing, the incessant mockery and hostile working environment was based on sexual orientation. The CA did note it would have been easier to decide the case if the tribunal had first made fact findings on what happened, instead of going straight to a hearing on an abstract legal point.