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Discrimination on Grounds of Sexual Orientation A Strict Interpretation
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May 2008 Edition
Discrimination on Grounds of Sexual Orientation A Strict Interpretation
In a recent survey of 268 teachers conducted by the Association of Teachers and Lecturers, more than 70% of teachers claim to have heard put-downs in their school or college that refer to sexuality. Further, over half of the teachers surveyed have also witnessed gossiping or the spreading of rumours about other pupils' sexuality. It is hardly surprising, therefore, that these homophobic attitudes are carried forward into the workplace.
The result is that, despite protective legislation being introduced, discrimination on the grounds of sexual orientation remains a significant concern for employers.
The recent decision of the Employment Appeal Tribunal (EAT) in the case of English v Thomas Sanderson Blinds Ltd [2008] All ER (D) 282 (Feb) has once again brought this issue under the spotlight.
Stephen English, a married heterosexual man with three children, was subjected to a period of sustained abuse and relentless taunts by his co-workers. The comments made were of a fiercely homophobic nature, and allegedly stemmed from the fact that Mr English went to boarding school and grew up in Brighton. The perpetrators were in fact fully aware of his heterosexuality.
The EAT held that Mr English was not protected by Regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003 ("the Regulations"). Regulation 5 protects individuals from 'unwanted conduct' which 'violates their dignity' or creates 'an intimidating, hostile, degrading, humiliating or offensive environment' for them 'on grounds of sexual orientation'.
The EAT decided that Mr English would only have come within the scope of the Regulations if he was actually gay, or genuinely perceived to be gay. As the perpetrators knew that he was heterosexual, Mr English had no remedy.
This decision highlights an unsatisfactory anomaly in the law. The EC Equal Treatment Directive 2000/78 (upon which the Regulations are based) states that national law should protect against discrimination "related to" sexual orientation. This wording is wider than that adopted by the Regulations and would protect someone in Mr English's position.
The EAT has granted permission for the parties to appeal to the Court Appeal in the hope that Regulation 5 can be construed in compliance with the EC Directive.
Comment
The EAT decided that Mr English would have been protected if his harassers had believed he was gay. Why should protection from harassment be dictated by the belief of the perpetrators?
It appears that Mr English was subjected to a sustained barrage of abuse which might well have created a hostile, degrading, offensive, or humiliating environment; yet he was denied the protection he would have had if the comments made had been true! If Regulation 5 cannot be interpreted in a manner which complies with the protection intended by the EC Directive, it is likely that the Regulations themselves will require amendment.
Advice
Whilst there has been clear indication from the EAT that the current position is unsatisfactory, it nonetheless remains the law until the Court of Appeal determines otherwise.
With that in mind, we suggest opting for 'prevention' rather than 'cure'. By implementing and adhering to a clearly worded internal policy which highlights the fact that any homophobic taunts will not be tolerated, you will hopefully be able to avoid this legal minefield.
If you are concerned that your office manual does not cover this important issue, the employment team at Michelmores would be delighted to advise on how best to re-draft it to afford your business maximum protection.
Baldness not a disability
In another interesting case, the Employment Tribunal in Glasgow recently dismissed a claim by a retired schoolteacher that his baldness was a 'disability' under the Disability Discrimination Act 1995 ("the DDA"). The teacher claimed to have suffered constant abuse because of his baldness and argued that the condition was an "impairment" that had a "substantial and long-term adverse effect" as required under the provisions of the DDA.
The Tribunal Judge made the interesting comment that:
"just because Mr Campbell's baldness was used by others to taunt him, it did not mean it was a disability".
He went on to say,
"If baldness was to be regarded as an impairment then perhaps a physical feature such as a big nose, big ears or being smaller than average height might of themselves be regarded as an impairment under the DDA
this cannot be right looking to the DDA, the guidance and relevant case law.''
A defeat for the schoolteacher, therefore, but a victory for common sense.
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