The claimant appealed dismissal of his claim for harrassment and sex discrimination. Though heterosexual, he had been subject to persistent jokes that he was homosexual. The court first asked whether the alleged conduct was ‘on the grounds of sexual orientation’.
Held: The claimant’s appeal succeeded. Sedley LJ said: ‘the single critical assumed fact was that the appellant was repeatedly taunted as gay. In my judgment it did not matter whether he was gay or not. The calculated insult to his dignity, which depended not at all on his actual sexuality, and the consequently intolerable working environment were sufficient to bring his case both within Regulation 5 and within the 1976 Directive. The incessant mockery (‘banter’ trivialises it) created a degrading and hostile working environment, and it did so on grounds of sexual orientation. That is the way I would prefer to put it. Alternatively, however, it can be properly said that the fact that the appellant is not gay, and that his tormentors know it, has just as much to do with sexual orientation – his own, as it happens – as if he were gay. ‘
Laws LJ (dissenting) said: ‘harassment is perpetrated on grounds of sexual orientation only where some person or persons’ actual, perceived, or assumed sexual orientation gives rise to it, that is, is a substantial cause of it. Mr Reynold’s case confuses the reason for the conduct complained of with the nature of that conduct. On the facts the reason for the harassment was nothing to do with anyone’s actual, perceived, or assumed sexual orientation. It happened to take the form of ‘homophobic banter’ so called, which was thus the vehicle for teasing or tormenting the appellant. In those circumstances sexual orientation was not the grounds of the conduct complained of.’
Lawrence-Collins LJ said: ‘the proper construction of Regulation 5(1) leads to a conclusion that there was ‘ harassment . . on grounds of sexual orientation’ because the conditions of Regulation 5(1) were satisfied, namely that (a) on grounds of sexual orientation (b) the tormentors engaged in unwanted conduct (c) which had the purpose or effect of violating the claimant’s dignity or creating a degrading, humiliating or offensive environment for the claimant, and (d) which should reasonably be considered as having that effect. ‘
Laws LJ, Sedley LJ, Lawrence Collins LJ
[2008] EWCA Civ 1421, Times 05-Jan-2009, [2009] IRLR 206, [2009] ICR 543, [2009] 2 All ER 468, [2009] 2 CMLR 18
Bailii
Employment Equality (Sexual Orientation) Regulations 2003 5, Directive 2000/78/EC
England and Wales
Citing:
Cited – Showboat Entertainment Centre v Owens EAT 28-Oct-1983
The employer had dismissed an employee who had refused to comply with a discriminatory instruction by the employer to exclude blacks from the employer’s amusement centre. The tribunal at first instance had found that that was a dismissal ‘on racial . .
Appeal from – English v Thomas Sanderson Blinds Ltd EAT 20-Feb-2008
EAT Sexual Orientation Discrimination/Transexualism
Harrassment
Reach of Regulation 5 (harassment) of the Sexual Orientation Regulations 2003. Whether it covers homophobic banter directed towards a man . .
Cited – Equal Opportunities Commission v Secretary of State for Trade and Industry Admn 12-Mar-2007
The EOC contended amongst other things that section 4A(1)(a) of the Sex Discrimination Act 1975 did not fulfil its intended purpose, which was to transpose into English law provisions contained in the Equal Treatment Directive 2002/73/EC.
Cited – Serco Ltd v Redfearn CA 25-May-2006
The employee claimed that he had been discriminated against. He had stood as a candidate in local elections for the British National Party (BNP) party. His employers had dismissed him saying that his propagation of racially discriminatory polices . .
Cited – Weathersfield Ltd (T/a Van and Truck Rentals) v Sargent CA 10-Dec-1998
The employer, a vehicle hire operator, explained to the Claimant employee following her appointment as a receptionist their policy that if she received an enquiry from any coloured or Asians, judging by their voices, she was to tell them that there . .
Cited – Swiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
Cited – S Coleman v Attridge Law, Steve Law ECJ 31-Jan-2008
ECJ (Opinion) The claimant accepted voluntary redundancy, but then alleged disability discrimination and constructive dismissal. She claimed to have been subjected to unfair treatment because she had a disabled . .
Cited – Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (1) ECJ 5-Oct-2004
pfeiffer_deutchesrotesreuzECJ102004
ECJ Reference for a preliminary ruling: Arbeitsgericht Lorrach – Germany. Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in . .
Cited – Adeneler and Others v Ellinikos Organismos Galaktos ECJ 4-Jul-2006
A Directive was belatedly transposed into national law and after the date by which it ought to have been implemented. The question arose whether the obligation to interpret national law in accordance with the Directive existed from the date the . .
Cited – Revenue and Customs v IDT Card Services Ireland Ltd CA 27-Jan-2006
Under the Marleasing principle, or principle of conforming interpretation, the domestic court of a member state must interpret its national law so far as possible in the light of the wording and purpose of the Directive in question. However this . .
Cited by:
Cited – E, Regina (On the Application of) v The Governing Body of JFS and Another CA 25-Jun-2009
E challenged the admissions policy of a school which admitted by preference children acknowledged to be Jewish by the Office of their Rabbi. His mother being Jewish by conversion in a progressive synagogue, E was excluded. The claimant suggested . .
See Also – Thomas Sanderson Blinds Ltd v English EAT 21-Feb-2011
EAT SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
PRACTICE AND PROCEDURE – Review
Harassment on grounds of sexual orientation. The Tribunal directed itself correctly in looking at the Claimant’s own . .
Cited – Lee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
(Northern Ireland) The bakers held strong traditional Christian beliefs as to the nature of marriage. A staff member accepted an order for a cake emblazoned with a pro gay statement. The owners rejected the order and returned the fee. They now . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.278977