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STEPHEN ENGLISH v THOMAS SANDERSON LTD

The appellant (E) appealed against a decision ((2008) ICR 607) upholding a finding of the employment tribunal that the respondent former employer (T) was not liable under the Employment Equality (Sexual Orientation) Regulations 2003 reg.5 for harassing him on grounds of sexual orientation. E had alleged that for a protracted period he had been subjected by four colleagues to sexual innuendo suggesting that he was homosexual. The fact that he had been to boarding school and the fact that he lived in Brighton appeared to have been the genesis of the suggestions. E was in fact a heterosexual happily married man. He accepted that his tormentors knew that he was not gay. The issue was whether someone who was ribbed, teased or tormented by “homophobic banter” was or might be harassed within the meaning of reg.5 when (i) he was not gay, (ii) he was not perceived or assumed to be so by his fellow workers, and (iii) he accepted that they did not believe him to be gay.

13 January 2009

HELD: (Laws LJ dissenting) (1) The single critical assumed fact was that E had repeatedly been taunted as gay, but 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 within reg.5. The incessant mockery created a degrading and hostile working environment, and it did so on grounds of sexual orientation. Alternatively, it could properly be said that the fact that E was not gay, and that his tormentors knew it, had just as much to do with sexual orientation as if he were gay. If, as was common ground, tormenting a man who was believed to be gay but was not amounted to unlawful harassment, the distance from there to tormenting a man who was being treated as if were gay when he was not was barely perceptible. In both cases, the man’s sexual orientation, in both cases imaginary, was the basis of the harassment. There wer...

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