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||BAILII case number:  UKEAT 0556_07_2002
||Appeal No. UKEAT/0556/07
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
||At the Tribunal
||On 17 January 2008
||Judgment delivered on 20 February 2008
HIS HONOUR JUDGE PETER CLARK
MR H SINGH
MR S YEBOAH
|MR S ENGLISH
|THOMAS SANDERSON BLINDS LTD
Transcript of Proceedings
© Copyright 2008
|For the Appellant
||MR F REYNOLD
(One of Her Majesty's Counsel)
MR IAN WILSON
(Higher Court Advocate)
Messrs. Dean Wilson Laing Solicitors
96 Church St
|For the Respondent
||MISS S A BOTHROYD
Messrs Bolitho Way Solicitors
13-18 Kings Terrace
Sexual Orientation Discrimination/Transexualism
Reach of Regulation 5 (harassment) of the Sexual Orientation Regulations 2003. Whether it covers homophobic banter directed towards a man who (a) is not gay (b) is not perceived / assumed to be gay by his fellow workers and (c) accepts they do not believe him to be gay.
Held: ET entitled to find, on those facts, Claimant not protected by Regulation 5; but query whether covered by the Directive (2000/78/EC).
Judgment of Burton J in EOC v Secretary of State for Trade & Industry  IRLR 327 applied to S.O. Regs.
Permission to appeal granted to Appellant/Claimant.
HIS HONOUR JUDGE PETER CLARK
- The issue in this appeal raises a short but important question. What is the reach of the harassment provision contained in Regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003 (the Regulations)?
- The parties before the Brighton Employment Tribunal were Mr Stephen English, the Claimant, and Thomas Sanderson Blinds Ltd, the Respondent. We shall so describe them. The appeal is brought by the Claimant against the judgement of a full Employment Tribunal chaired by Mr J.W.A Livesey, promulgated with reasons on 18 September 2007, following a hearing held on 4-5 September
- The Claimant was engaged by the Respondent under an agency agreement (a contract for personal services) between October 1996 and 26 August 2005. On about 23 November 2005 he presented a complaint to the Employment Tribunal complaining of harassment contrary to the Regulations and a further complaint with which we are not concerned. The claims were resisted
- When the matter came before the Livesey Employment Tribunal for full hearing, directions having been given at a pre-hearing review held before a Chairman, Mr Cowling, sitting alone at a preliminary hearing held on 14 June 2007, the full Employment Tribunal decided to deal with an issue mentioned in the list of issues identified at the pre-hearing review as a preliminary question
- The Claimant's pleaded case of harassment, as set out in Particulars served with his form ET1, was that for many years he had been submitted to sexual innuendo by his work colleagues to the effect that he was homosexual. He claimed that this course of conduct originated from a manager who learned that the Claimant had (a) attended a boarding school and (b) lived in Brighton. Over the years work colleagues had engaged in what is sometimes described as 'banter' of a homophobic nature with the Claimant.
- The preliminary issue arose on this factual premise; that the Claimant was not homosexual, nor was he mistakenly or genuinely thought to be so by his 'tormentors' and that he himself fully accepted that they did not believe him to be gay.
- The question, in these circumstances, was whether the Claimant's complaint fell within the scope of Regulation 5. The Respondent contended that, as a matter of law, it did not.
- Having considered Regulation 5 and a number of cases decided, not on the harassment provision in this or other discrimination legislation, but on the direct discrimination provisions in the Race Relations Act 1976, the Employment Tribunal concluded that the Claimant did not fall within any of the covered categories of victims of harassment; that is, (a) a person who is homosexual, (b) one who is perceived by his harassers as homosexual or (c) a person who is harassed because of his failure to follow instructions to discriminate against another on grounds of sexual orientation.
- With some reluctance the Employment Tribunal held that the facts of the present case did not attract the protection against harassment of Regulation 5
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 Regulations were passed to implement the Framework Directive (No 2000/78/EC). (The Directive)
Article 1 of the Directive states its Purpose:
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.
And by Article 2 (3)
"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 States."
- Having pre-read the helpful skeleton arguments and considered the bundles of authorities lodged by counsel I invited their attention, in advance of this hearing, to the judgment of Burton J, sitting in the Administrative Court, in Equal Opportunities Commission v. Secretary of State for Trade & Industry  IRLR 327, and we received oral submissions on the effect of that judgment in the context of the present appeal.
- In the EOC case the Commission, as it then was, sought a declaration that in certain respects the amendments to the Sex Discrimination Act 1975 (SDA) by Regulations made in 2005 failed properly to implement the Equal Treatment Directive 2002/73/EC.
- Material for our purposes was the contention that the harassment provision contained in s4A(i)(a) SDA, as amended, did not properly implement the relevant provision in Directive 2002/73/EC.
- The relevant wording in s4A(i)(a) and in Directive 2002/73/EC reflects that in Regulation 5 of the Regulations and Article 2 (3) of the Directive, save that s4A(i)(a) speaks of "on the ground of her sex", as opposed to "on the ground of sexual orientation" in Regulation 5.
- It was accepted by Ms Dinah Rose QC on behalf of the EOC before Burton J (judgment, paragraph 7) that her submission, that a material difference existed between 'on the grounds of her sex' in s4A(i)(a) SDA and the expression 'related to her sex', applied equally to equivalent provisions in the race, disability and sexual orientation legislation.
- On that principal submission, Mr David Pannick QC, for the Department, originally contended that no material difference existed between the forms of expression in the SDA and the Equal Treatment Directive; it was then said that a purposive construction ought to be applied to the domestic legislation, consistent with that Directive (as in Webb v. Emo (No2)  IRLR 645 HL and Litster v Firth Dry Dock Co Ltd  IRLR 161.(HL).
- Having considered the rival submissions Burton J concluded (para. 61) that it was not open to him to construe the domestic statute in compliance with the relevant Directive. Accordingly he indicated, without making a formal declaration (para. 63(i)) that s4A(i)(a) should be recast so as to eliminate the causation issue raised in the expression "on the grounds of her sex", it not being present in the wording of the Directive.
- A number of questions arise in the light of that judgment in the present case. We have canvassed them with Mr Reynold QC, now appearing on behalf of the Claimant. First, Burton J was dealing with the different wording of the SDA. Mr Reynold submits that, based on the old cases on direct discrimination e.g. Showboat Entertainments Centre v Owens (1984) ICR 65; Weatherfield Ltd v Sergeant  ICR 425, the phrase "on grounds of sexual orientation" is wider than "on grounds of her sex". We accept that proposition. The formula in the Regulations extends to discrimination (in the widest sense) based on perception, association or instructions, as the DTI Explanatory Notes to the Regulations, paras. 24-25, to which Mr Reynold referred us, make clear.
- Nevertheless, we are not persuaded that any material difference exists between the Regulations and the SDA provisions under consideration for the purposes of the distinction drawn between the domestic provisions and Article 2 (3) of the Directive. In our view the conclusion reached by Burton J applies equally to the provisions mentioned at paragraph 7 of his judgment.
- The next question is whether we are bound to follow the decision in the EOC case.
- Plainly we are not; however, in the interests of comity we would do so unless there are compelling reasons not to. There are not. Mr Reynold has sought to advance the argument, unsuccessfully put to Burton J by Mr Pannick, that there is no real difference between the expressions used in the Directive and the Regulations. We reject that submission on its merits. In our view there is a material difference as Burton J ruled. We acknowledge that causation is a 'slippery word', as Lord Nicholls observed in Chief Constable of W Yorkshire Police v Khan  ICR 1065, para. 29; however, applying his Lordship's approach in Nagarajan v London Regional Transport  1 AC 502, S10-S12, the phrase 'on racial grounds' raises the question, why did the alleged discriminator act as he did? That is not the same question, in our view, as whether the unwanted conduct, in a case of alleged harassment, was related to, here, sexual orientation.
- In these circumstances we are driven to conclude, as did Burton J in relation to sexual harassment, that Regulation 5 does not properly implement the Directive. As we shall shortly seek to demonstrate, the protection afforded to Mr English by the domestic Regulations is narrower than that which the Directive provides. However, he cannot rely directly on the Directive against this private Respondent.
- In challenging the Employment Tribunal's conclusion Mr Reynold submits, applying the approach of Lord Nicholls LJ in Khan and Nagarajan, that the answer to the question why did those who engaged in homophobic banter directed at the Claimant behave as they did, is that they did so because they perceived him as having stereotypical characteristics which they associated with a gay person; he went to boarding school and lived in Brighton. Insofar as that answer brings the Claimant within the DTI explanatory note, paras, 24-25, he falls within the reach of Regulation 5.
- We cannot accept that analysis. The difficulty facing the Claimant on the facts adopted by the Employment Tribunal is that not only did the alleged harassers not perceive the Claimant to be gay; he fully accepted that that was the position.
- In these circumstances we have concluded that, on the facts, the unwanted conduct was not on grounds of sexual orientation. The homophobic banter (on the necessary assumption, contrary to the Respondent's case) unacceptable as it was, was a vehicle for teasing the Claimant, as Ms Bothroyd submits. It was not based on their perception nor even incorrect assumption that he was gay.
- For these reasons we must dismiss this appeal. No error of law is shown in the Employment Tribunal's approach.
Permission to Appeal
- The final question raised by the EOC case is whether we should accede to Mr Reynold's application for permission to appeal to the Court of Appeal. He tells us that Mr English is supported by the Commission. Ms Bothroyd does not actively oppose that application, whilst not consenting to it.
- We shall grant permission. The Commission (or strictly its predecessor) established its case before Burton J that the UK Government had failed properly to implement European Law in the case of the SDA and, we are satisfied, by extension, in the case of the Regulations.
- This is a 'real' case involving an individual's rights. We believe, without deciding the point, that the result may have been different on direct application of the Directive, as opposed to reliance on the Regulations. That is an unsatisfactory state of affairs.
- In these circumstances it must be right to allow this Claimant to test our decision and that of the Employment Tribunal in the Court of Appeal.
- We direct that time for appealing be extended to 21 days from the date on which this judgment containing our reasons is handed down, we having announced our decision and granted permission to appeal at the end of the hearing before us.
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