In Thomas Sanderson Blinds v English (No.2) the EAT upheld a tribunal decision that a heterosexual employee who was subjected to homophobic banter at work did not suffer harassment. The tribunal had correctly taken into account the employee’s own “extremely offensive behaviour” and the fact that he had remained friends with his alleged tormenters and not complained about them, in concluding that the relevant conduct did not have the effect of harassing him.
In an earlier jurisdiction point in this case, the Court of Appeal decided that repeatedly calling Mr English, who is heterosexual, a “faggot”, could amount to harassment related to sexual orientation even though he is not gay and his tormentors knew this to be the case. The claim proceeded to a full hearing.
A tribunal rejected the majority of the allegations of harassment as it found that Mr English had participated in banter and name-calling, had written similarly offensive articles ‘riddled with sexist and ageist innuendo’ for the in-house magazine and was good friends with his tormentors. When considering Mr English’s own ‘extremely offensive behaviour’, it was not reasonable to conclude that the conduct he complained of violated his dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for him.
The EAT rejected Mr English’s appeal. The tribunal had adopted the correct approach in considering Mr English’s own perceptions and feelings in deciding the effect of unwanted conduct for the purposes of the harassment provisions. The EAT agreed with the earlier decision in Richmond Pharmacology v Dhaliwal [2009] IRLR 336 that, although the test was objective, the subjective response of the alleged victim was to be kept “firmly in mind”. The tribunal was therefore right to ask about Mr English’s own perceptions and feelings in order to determine whether the effect of the unwanted conduct was to violate his dignity or create an adverse environment.
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