English v Thomas Sanderson Blinds Ltd: UKEAT/556/07

EAT: Judge Peter Clark, Mr H Singh and Mr S Yeboah: 20 February 2008

The claimant brought a claim of harassment on grounds of sexual orientation against his employers under regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003, alleging that he had been subjected to banter and innuendo of a homophobic nature by his colleagues because they perceived him as having stereotypical characteristics which they associated with a homosexual in that he had attended a boarding school and lived in Brighton. At a pre-hearing review it was accepted that the claimant was not homosexual, that he was not perceived to be so by his colleagues and that his colleagues did not think he was homosexual. The employment tribunal dismissed his claim on the ground that his complaint did not come within the scope of regulation 5.

The claimant appealed.

The Employment Appeal Tribunal held:
While engagement in unwanted conduct “on grounds of” sexual orientation in regulation 5(1) of the 2003 Regulations extended to discrimination in the wide sense of conduct based on perception, association or instructions, there was a material difference between that wording and unwanted conduct “related to” the ground of sexual orientation in article 2(3) of Directive 2000/78, which the 2003 Regulations were passed to implement, in that the phrase in regulation 5(1) imported the concept of causation, asking why the alleged discriminator acted as he did, which was not the same question as that raised by article 2(3) of the Directive. But, although regulation 5 did not, therefore, properly implement the Directive, the claimant could not rely directly on the Directive against a private body, and, since the homophobic banter, though an unacceptable vehicle for teasing the claimant, was not based on his colleagues’ perception, or even their incorrect assumption, that he was homosexual, it did not come within the scope of regulation 5.

The appeal was dismissed.

Appearances: Frederic Reynold QC and Ian Wilson (Dean Wilson Laing, Brighton) for the claimant; Shirley Bothroyd (Bolitho Way, Portsmouth).