The Court of Appeal has ruled that workplace harrassment “on the grounds of” sexual orientation may be unlawful regardless of whether the victim is (or is thought to be) of the sexuality in question.
A Mr. English was married with children and was not gay. His colleagues knew he was not gay. However, since he had gone to boarding school and lived in Brighton, he was called “faggott” and lurid comments regarding him were published in the works’ magazine.
His case for harassment was rejected by the Employment Tribunal – as he was not, in fact, gay.
However, the Court of Appeal held that the behaviour complained of did offend against the Sexual Orientation Regulations. The court stated:
“If, as is common ground, tormenting a man who is believed to be gay but is not amounts to unlawful harassment, the distance from there to tormenting a man who is being treated as if he were gay when he is not is barely perceptible.”
Sedley LJ opined that the application of anti-discrimination laws should not be dependent on an individual identifying themselves as belonging to one or other strict definition of their sexuality – sexuality being “a nuanced” issue.
School playgrounds up and down the country – take note!