200905.05
Off
0

The sexuality of a victim may be irrelevant in a claim for harassment on ground of sexual orientation


The appellant was engaged by the respondents between 1996 and 26 August 2005. On about 23 November 2005 he issued a claim in the ET in which he alleged that for a protracted period he had been subjected by four colleagues at work to sexual innuendo suggesting in obvious terms that he was homosexual. 

Someone had discovered that he had been to a boarding school and lived in Brighton, and these facts seem to have been the genesis of the suggestions. He had to endure names like “faggot”, and on two occasions at least, lurid comments in the house magazine. His case was that this cruel and puerile conduct drove him to leave his job. 

The appellant is in fact a heterosexual happily married man with three teenage children. The appellant fully accepted that his tormentors knew perfectly well that he was not gay. They knew he was happily married with children. The EAT held that the homophobic banter (as it was described) was, no more nor less than a vehicle for teasing him. It was not based on their perception nor even incorrect assumption that he was gay; hence his claim failed.  He appealed to the CA. 

The CA held that 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. The CA did not see any distinction between tormenting a man who is believed to be gay and tormenting a man who is being treated as if he were gay when he is not is barely perceptible, both they said amounts to unlawful harassment.  The harassment was on the grounds of sexual orientation.