Homophobic banter directed by work colleagues towards a man who was not homosexual, who was not perceived to be homosexual by his tormentors, and who, himself, accepted that that was the position, did not fall within the remit of the protection against harassment in the Employment Equality (Sexual Orientation) Regulations 2003 reg.5.

The appellant (E), an agent formerly engaged by the respondent company (T), appealed against a decision that his complaint of harassment did not attract the protection against harassment in the Employment Equality (Sexual Orientation) Regulations 2003 reg.5. E had been engaged by T under a contract for personal services for almost nine years. He claimed to have been subjected to homophobic banter by work colleagues for many years, which had started when a colleague discovered that E had attended a boarding school in Brighton. In fact, E was not homosexual, nor was he mistakenly or genuinely thought to be so by his tormentors, and he himself fully accepted that they did not believe him to be homosexual. E submitted that (1) the phrase "on grounds of sexual orientation" in Reg.5 of the 2003 Regulations was wider than the phrase "on grounds of her sex" in the Sex Discrimination Act 1975 s.4A; (2) no material difference existed between the forms of expression in the 1975 Act and Directive 2002/73; (3) the reason for directing homophobic banter at E was because E's colleagues perceived E as having stereotypical characteristics that they associated with a gay person and such an explanation for it brought E within Reg.5.

HELD: (1) The reference to "sexual orientation" in Reg.5 was wider than the reference to "sex" in s.4A(i)(a) of the 1975 Act. The formula in the Regulations extended to discrimination in the widest sense based on perception, association or instructions, as the DTI Explanatory Notes to the Regulations para.24 and 25 made clear. However, no material difference existed between the Regulations and the 1975 Act for the purposes of the distinction drawn between the domestic provisions and Directive 2000/78. (2) There was a material difference between the forms of expression in the 1975 Act and Directive 2002/73. Applying the approach in Nagarajan v London Regional Transport (2000) 1 AC 501 HL, the phrase "on racial grounds" raised the question of why the alleged discriminator acted as he did, which was a different question to that in the instant case of whether the unwanted conduct in a case of alleged harassment was related to sexual orientation, Nagarajan and Equal Opportunities Commission v Secretary of State for Trade and Industry (2007) EWHC 483 (Admin), (2007) 2 CMLR 49 applied. Therefore, in relation to sexual harassment, Reg.5 did not properly implement Directive 2000/78 in that the protection afforded to E by domestic law was narrower than that which the Directive provided. E could not, however, rely directly on Directive 2000/78 against a private respondent. (3) On the facts, the unwanted conduct was not on the grounds of sexual orientation because E was not actually perceived to be gay and he fully accepted that that was the position. (4) Permission to appeal to the Court of Appeal was granted because it was an unsatisfactory state of affairs that the result may have been different on direct application of the Directive as opposed to reliance on the Regulations.

Appeal dismissed
Counsel:
For the appellant: F Reynold, Ian Wilson
For the respondent: SA Bothroyd