In March the EAT ruled that Mr English, a straight man whose colleagues knew full well he was straight, was not harrassed within the Employment Equality (Sexual Orientation) Regulations 2003 when his colleagues subjected him to homophobic abuse. My blog post on that decision is here. This has now been overruled by the Court of Appeal in English v Thomas Sanderson Ltd [2008] EWCA Civ 1421.
The court was divided. Lord Justice Laws, in the minority, felt that the regulations did not apply, concluding that although cases like Coleman make it clear that the prohibited ground need not apply to the complainant, they must apply to somone. The other judges disagreed. Lord Justice Sedley says:
It cannot possibly have been the intention, when legislation was introduced to stop sexual harassment in the workplace, that such a claimant must declare his or her true sexual orientation in order to establish that the abuse was “on grounds of sexual orientation”. What is required that the claimant’s (or someone else’s) sexual orientation, whether real or supposed, should have been the basis of harassment directed at him or her. That is what was going on here, even on the limited facts which were assumed to be the only relevant ones. The case would have been exactly the same if Mr English had elected, for whatever reason, to remain silent about his actual sexual orientation – for example because he took the principled position that it was nothing to the point. And the same would be the case if he were actually gay or bisexual but preferred not to disclose it.
This must be right, and the different approaches taken are illustrative of how the correct approach to European-led anti-discrimination legislation must be a practical and realistic one, rather than being driven by adherence to hard precedence. Authority on race was singularly unhelpful here, dealing with an external characteristic rather than one which is effectively self-declared.
