English v Thomas Sanderson Blinds Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE LAWS:,LORD JUSTICE SEDLEY,Lord Justice Laws,LORD JUSTICE LAWRENCE COLLINS
Judgment Date19 Dec 2008
Neutral Citation[2008] EWCA Civ 1421
Docket NumberCase No: A2/2008/0600

[2008] EWCA Civ 1421

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

HIS HONOUR JUDGE PETER CLARK

UKEAT/0556/07/LA

Before:

Lord Justice Laws

Lord Justice Sedley and

Lord Justice Lawrence Collins

Case No: A2/2008/0600

Between
Stephen English
Appellant
and
Thomas Sanderson Ltd
Respondent

Frederic Reynold QC and Marcus Pilgerstorfer (instructed by Messrs Dean Wilson Laing) for the Appellant

Ms Shirley Bothroyd and Mr Robert Palmer (instructed by Messrs Bolitho Way) for the Respondent

Hearing dates: 31 October 2008

Judgement

LORD JUSTICE LAWS:

INTRODUCTION

1

This is an appeal, with permission granted by the Employment Appeal Tribunal (the EAT), against the decision of the EAT dated 20 February 2008 by which they dismissed the appellant's appeal against the earlier determination of the Employment Tribunal (the ET) made on 12 February 2007. The ET had dismissed the appellant's claim of harassment brought pursuant to Regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003 (the Regulations).

2

The issue in the appeal is whether someone who is ribbed or teased – or, it might be said, tormented – by “homophobic banter” (the phrase used in this case) is or may be thereby harassed within the meaning of Regulation 5 when (a) he is not gay, (b) he is not perceived or assumed to be gay by his fellow workers, and (c) he accepts that they do not believe him to be gay.

THE FACTS

3

The appellant was engaged by the respondents under a contract for personal services between 1996 and 26 August 2005. On about 23 November 2005 he issued a claim in the ET alleging harassment contrary to the Regulations, and another claim with which we are not concerned. The appellant's pleaded harassment case was as follows. He alleged that for a protracted period he had been subjected by four colleagues at work to sexual innuendo suggesting in obvious terms that he was homosexual. Someone had discovered that he had been to a boarding school and lived in Brighton, and these facts seem to have been the genesis of the suggestions. He had to endure names like “faggot”, and on two occasions at least, lurid comments in the house magazine. His case was that this cruel and puerile conduct drove him to leave his job.

4

The appellant is in fact a heterosexual happily married man with three teenage children. On his own case (as the ET was to record at paragraph 2.2 of their determination), the appellant fully accepted that his tormentors knew perfectly well that he was not gay. They knew he was happily married with children. Their homophobic banter (as it was described) was, as the EAT noted (paragraph 24), no more nor less than a vehicle for teasing him. One has the strong impression that the word “teasing” greatly understates the unpleasantness of what was being done.

5

The appellant gave evidence before the ET to the effect that he was well aware that the perpetrators knew he was not gay and purposed only to “tease” him. On receiving that evidence the ET decided to proceed by determining a preliminary issue, formulated thus: did Regulation 5 of the Regulations cover the case of homophobic banter directed towards a man who (a) is not gay, (b) is not perceived or assumed to be gay by his fellow workers, and (c) accepts that they do not believe him to be gay. As will be obvious this formulation defines the issue in this appeal as I have set it out in paragraph 2.

THE REGULATIONS AND THE DIRECTIVE

6

Regulation 5 provides:

“5 Harassment on grounds of sexual orientation

(1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on grounds of sexual orientation, A engages in unwanted conduct which has the purpose or effect of -

(a) violating B's dignity; or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.”

The subjection of an employee to such harassment is made unlawful by regulation 6(3).

7

The Regulations were made in order to implement Directive 2000/78/EC “establishing a general framework for equal treatment in employment and occupation” (the Framework Directive). In light of part of the argument before us I should set out the 11 th and part of the 12 th recital, and certain of the executive provisions:

“(11) Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons.

(12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community…

Article 1

Purpose

The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment…

Article 2

Concept of discrimination

1. For the purpose of this Directive, the 'principle of equal treatment' shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1…

3. Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member State.”

THE DECISION OF THE EMPLOYMENT TRIBUNAL

8

The ET accepted (paragraph 6.3) that discrimination may occur where the perpetrators of the conduct complained of believe that the victim is gay, even if he is not; and indeed this is common ground. They also accepted (paragraph 6.4) that there may be discrimination “where a victim is treated detrimentally because he has not followed an instruction to discriminate against somebody else. We know that that is the case from the cases of Showboat and Weathersfield…” These authorities are reported at [1984] ICR 65 and [1999] ICR 425 respectively. Showboat is the well known case in which the EAT, presided over by Browne-Wilkinson J as he then was, upheld a complaint of unlawful racial discrimination by a white man who was dismissed by his employers for refusing to obey an instruction to exclude all black customers from the entertainment centre where he worked. The ET cited among other passages this paragraph from the judgment:

“We therefore conclude that section 1(1)(a) covers all cases of discrimination on racial grounds whether the racial characteristics in question are those of the person treated less favourably or of some other person. The only question in each case is whether the unfavourable treatment afforded to the claimant was caused by racial considerations.”

9

The ET also referred to the more recent decision of this court in Redfearn v Serco Ltd [2006] IRLR 623, about which I will have more to say. They concluded “with some reluctance” (paragraph 6.13) that “to find in the claimant's favour would be to extend the ambit of the Regulations beyond extensions already made through cases such as Showboat”.

THE DECISION OF THE EMPLOYMENT APPEAL TRIBUNAL

10

And so the matter went to the EAT. Here the case took a different turn because the presiding judge, His Honour Judge Peter Clark, drew counsel's attention to the decision of Burton J in the Administrative Court in EOC v Secretary of State [2007] ICR 1234. In that case the EOC contended amongst other things that s.4A(1)(a) of the Sex Discrimination Act 1975 did not fulfil its intended purpose, which was to transpose into English law provisions contained in the Equal Treatment Directive 2002/73/EC. The latter measure amended Council Directive 76/207/EEC. Article 2(2) of the 1976 Directive as so amended provided:

“For the purposes of this Directive, the following definitions shall apply… harassment: where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment…”

S.4A(1)(a) of the 1975 Act provided:

“For the purposes of this Act, a person subjects a woman to harassment if (a) on the ground of her sex, he engages in unwanted conduct that has the purpose or effect…”

There are then set out consequences, including violation of the woman's dignity, which are taken from the Directive.

11

Miss Rose QC for the EOC submitted, and Burton J accepted, that the use in s.4A(1)(a) of the expression “on ground of her sex” introduced a requirement of cause and effect between the woman's sex and the objectionable conduct: whereas no such element was present in the amended Directive's definition of harassment, which as we have seen uses the expression “unwanted conduct related to the sex of a person”.

12

Burton J considered a submission made by Mr Pannick for the Secretary of...

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  • R (E) v JFS Governing Body
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    • Court of Appeal (Civil Division)
    • 25 June 2009
    ...of a particular ethnicity which constitutes racial grounds for an act of discrimination (see English v Thomas Sanderson Blinds Ltd [2008] EWCA Civ 1421). 28 It is also common ground that, if an act of discrimination is done on racial grounds, its motive does not matter. But the distinction......
  • Lee v Ashers Baking Company Ltd and Others
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    • 10 October 2018
    ...identified person whose disability, the protected characteristic, was the reason for the less favourable treatment. 30 In English v Thomas Sanderson Blinds Ltd [2009] ICR 543, the applicant complained of harassment at work, because he was repeatedly taunted as if he were gay when in fact h......
  • R (E) v JFS Governing Body
    • United Kingdom
    • Supreme Court
    • 16 December 2009
    ...has the sexual orientation or racial origins on the ground of which he or she is treated less favourably is irrelevant: English v Thomas Sanderson Blinds Ltd. [2008] EWCA Civ 1421; [2009] ICR 543 (where the majority also held it to be irrelevant whether the discriminator believed the vict......
  • R Core Issues Trust v Transport for London and Another Secretary of State for Culture, Media and Sport and Minister for Women and Equalities (Respondent Intervener)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 27 January 2014
    ...held that a person known to be heterosexual who was taunted by his co-workers with homophobic abuse is protected by the EA. In English v Thomas Sanderson Ltd [2009] ICR 543 at para 38, Sedley LJ said: "If, as is common ground, tormenting a man who is believed to be gay but is not amoun......
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1 books & journal articles
  • The curious case of marriage/civil partnership discrimination in Britain
    • United Kingdom
    • International Journal of Discrimination and the Law Nbr. 12-3, September 2012
    • 1 September 2012
    ...subjected to abuse as such even where the perpetrators know that such a perception iswrong; English v Thomas Sanderson Blinds Ltd [2009] 2 All ER 468 (CA)).17. Equality Act 2010, s. 100(1). See also s. 28(1)(b), s. 32(1)(b), s. 84(b), s. 90, s. 95.18. Part 4 Premises and the Schools Chapter......

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