English v Thomas Sanderson Ltd

English v Thomas Sanderson Ltd

By majority, the Court of Appeal held that repeated homophobic taunting, even where the victim is not gay and is not perceived to be gay by his tormentors, can constitute harassment 'on grounds of sexual orientation' under Regulation 5. The majority reasoned that the character of the conduct, not the actual or perceived orientation, is determinative, and the legislation does not require proof of the victim's or the perpetrator's belief in the victim's sexual orientation.

Parties
Appellant: Stephen English; Respondent: Thomas Sanderson Ltd
Jurisdiction
England and Wales
Judgment Date
19 December 2008
Procedural Posture
Appeal / Court of Appeal Judgment on Appeal From Employment Appeal Tribunal
Outcome
Appeal allowed (by majority)
Legal Topics
Harassment, Sexual Orientation Discrimination, Interpretation of Statutes, Implementation of EU Directives
Employment Law Equality Law Discrimination Law Harassment Sexual Orientation Discrimination Interpretation of Statutes Implementation of EU Directives

Case Brief

Summary, issues, holding and outcome

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Parties

Stephen English

Appellant

Thomas Sanderson Ltd

Respondent

Procedural Posture

Appeal / Court of Appeal Judgment on Appeal From Employment Appeal Tribunal

Legal Issues

  1. 1 Whether homophobic banter directed at a heterosexual man not perceived to be gay by his tormentors constitutes harassment under Regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003
  2. 2 Whether Regulation 5 properly implements the Framework Directive 2000/78/EC
  3. 3 Whether Regulation 5 can be interpreted or 'read down' to conform with the Directive

Ratio Decidendi

By majority, the Court of Appeal held that repeated homophobic taunting, even where the victim is not gay and is not perceived to be gay by his tormentors, can constitute harassment 'on grounds of sexual orientation' under Regulation 5. The majority reasoned that the character of the conduct, not the actual or perceived orientation, is determinative, and the legislation does not require proof of the victim's or the perpetrator's belief in the victim's sexual orientation.

Court Disposition

Appeal allowed (by majority)

Orders

  • The appeal is allowed; the decision of the Employment Tribunal is set aside.