English v Thomas Sanderson Ltd: CA 19 Dec 2008

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
Employment Equality (Sexual Orientation) Regulations 2003 5, Directive 2000/78/EC
England and Wales
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Cited by:
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See AlsoThomas Sanderson Blinds Ltd v English EAT 21-Feb-2011
Harassment on grounds of sexual orientation. The Tribunal directed itself correctly in looking at the Claimant’s own . .
CitedLee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
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Updated: 06 September 2021; Ref: scu.278977