Homophobic Abuse and the Heterosexual
| Published: 21st April 2008 14:58 |
The Employment Equality (Sexual Orientation) Regulations 2003 prohibit workplace discrimination based on an individual's actual or "perceived" sexual orientation. This means that protection is provided under the legislation to homosexual workers, and also to those who are incorrectly believed to be gay.
However, the case of English v. Thomas Sanderson Blinds Ltd recently tested the scope of the Regulations beyond the given meaning above. English complained that he had been the long-suffering target of homophobic abuse by his colleagues, although he was not homosexual. The significance of the case was that his colleagues did not, in fact, believe English to be gay and, in addition, English himself knew that they did not believe that he was homosexual.
English argued that he had a claim under the Regulations as the homophobic behaviour amounted to discrimination based on perception. The Employment Appeal Tribunal (EAT) reluctantly upheld the tribunal's rejection of his claim, stating that the abuse had not been based on a perception or incorrect assumption that he was actually gay. However, the EAT did question if the Regulations had been too narrowly interpreted in implementing the EU directive from which they originate, and therefore gave permission to appeal to the Court of Appeal.
Although such homophobic "banter" aimed at heterosexual workers is not (yet) covered by the Regulations, any unwanted behaviour that a person finds intimidating, upsetting, embarrassing, humiliating or offensive may lead to successful claims of constructive (and unfair) dismissal. Employers are therefore advised to have in place "dignity at work" or "harassment" policies clearly setting out what is considered inappropriate behaviour, the procedure for raising complaints, and the potential sanctions for failing to comply. In addition, any grievances raised under the policy must be properly investigated and resolved following the correct Company procedure.
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