Usefully Employed

Mr English went to a boarding school and lived in Brighton. This, perhaps with the odd camp mannerism, was enough to draw tired and predictable jokes from his workmates. His claim of harassment under the Employment Equality (Sexual Orientation) Regulations 2003 has failed, causing considerable embarrassment to both of us, as I wrongly suggested in a previous post that this sort of treatment was unlawful.

In this case Mr English wasn’t gay, no-one thought he was gay, and he knew they didn’t think he was really gay. This wasn’t enough to stop them shouting “bums to the wall” every time he walked past.* The regulations ban conduct on the “ground” of sexual orientation - this is what causes the difficulties. If you’re trying to show that I’m discriminating then you’ll have to show that my treatment was on the “ground” of sexual orientation. This means that my motivation to treat you in that way must have been sexual orientation (or my perception of it). This simply cannot be said of Mr English’s abusers, their slurs were baseless and they knew it. If they’d thought he was gay then the necessary motivation would have been there and the claim would have succeeded. Similarly, if his son, dad, dog or whatever else had been gay the claim would have succeeded too.

My one consolation is that the EAT grumble about the situation almost all the way through the judgment, and state their opinion that the regulations don’t properly implement the Equal Treatment Directive. They’ve packed the case off to the Court of Appeal, which in these circumstances is the same as you referring a troublesome customer to your manager so that the smackdown will have some authority behind it.

*I made up this detail of the case, although as a child it was a common enough cry at my school, directed at heterosexual yet gawkish pupils by bullying closeted ones. I’m not sure which category I fitted into.