Thomas Sanderson Blinds Ltd v English (UKEAT/0316/10)
Background
Mr English is married with three children and lives in the Brighton area. He commenced employment with Thomas Sanderson Blinds Limited in October 1996. In January 2001, he became an area sales manager and headed up a team in the South.
When Mr English’s colleagues found out that he had been educated at boarding school and that he lived in Brighton, they regularly made offensive remarks during meetings and described him as a “faggot”. On one occasion Mr English was asked whether he had been marching up and down at a “notorious pick up point” in Brighton and articles were written in the company’s internal magazine portraying him as a gay man. Mr English did not make any complaint about the conduct of his colleagues and was in fact good friends with two of them.
An article in the company’s internal magazine in August 2005 prompted Mr English to complain. Mr English (who is heterosexual) complained he had been subjected to homophobic banter and sexual innuendo by his colleagues. The article read: “On a lighter note on Saturday I went to Steve’s house to pick up some paperwork. He said he had to hurry as he was on his way to the Brighton Gay Pride Procession. Guess what? He was wearing a Royal Jacquard shirt and skin tight lycra cycling shorts. Enough said. I hurriedly left.” The writer subsequently apologised to Mr English. Mr English made a written complaint concerning the homophobic conduct. Mr English considered the article to be “a tipping point” and said he wanted the constant innuendo to stop.
This case was well-publicised when Mr English pursued a claim under the Regulations. The Court of Appeal held on a preliminary issue that Mr English was protected by the Regulations even though he was heterosexual.
The Regulations
The Regulations defined harassment as unwanted conduct on grounds of sexual orientation, which had the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Only conduct reasonably considered as having that effect, having regard to all the circumstances including the perception of the alleged victim, was to be regarded.
The Equality Act 2010 replaced the Regulations on 1 October 2010 but the harassment provisions remain the same. Sexual orientation is one of the protected characteristics covered by the Equality Act 2010.
Tribunal decision
The Employment Tribunal held that Mr English’s harassment claim (in respect of the article written about him in the internal magazine in August 2005) was made out. However his claim in relation to this conduct failed, as it was submitted out of time. The Tribunal found that, although Mr English had been subjected to “distasteful, demeaning and degrading expressions”, Mr English had himself participated in banter and name-calling and had written similarly offensive articles for the internal magazine. It transpired that Mr English had engaged in similar conduct and had himself written a number of articles that the Tribunal described as “riddled with sexist and ageist innuendo”. The Tribunal described Mr English’s own behaviour as “extremely offensive” and recorded an occasion when he had had to apologise to a woman for making an offensive remark about her breasts. The Tribunal also noted that Mr English and his fellow workers remained genuinely good friends.
In all the circumstances, the Tribunal concluded that Mr English could not reasonably have considered the conduct he was complaining of to have violated his dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for him. Mr English appealed against the decision.
Employment Appeal Tribunal (EAT)
The EAT upheld the Tribunal’s decision and rejected Mr English’s appeal. The EAT held that the Tribunal had adopted the correct test in considering Mr English’s own perceptions and feelings in order to determine whether the unwanted conduct was harassment.
The correct approach to follow had been set down in an earlier EAT decision in the case of Richmond Pharmacology v Dhaliwal [2009] IRLR 336. To be successful in a harassment claim based on the effect of allegedly offensive conduct, the victim must reasonably feel or perceive his dignity to have been violated or an adverse environment to have been created.
The EAT also rejected Mr English’s appeal against the out of time point, finding that there was no continuing act and no further act after the internal magazine incident in August 2005.
This case serves as a useful reminder as to how Tribunals have approached the question of the “effect” of unwanted conduct in harassment cases. It also provides a useful insight into how Tribunals have dealt with harassment cases where an employee has been working in an endemically offensive environment.
It is worth noting that an employer can be vicariously liable for harassment committed by an employee in the course of his employment. There is however a defence available to an employer if it can show that it took all reasonable steps to prevent the employee from carrying out an act of harassment. Employers should therefore ensure that they have bullying and harassment policies and procedures in place and that these are communicated to their employees and rigorously enforced.
Government reforms
The Government has recently announced measures to reduce the amount of red tape businesses face, including:
- repealing the regulations extending the right to request flexible working to the parents of 17 year olds. The right to request flexible working will continue only to be available to parents of children under 17, disabled children under 18 and carers of certain adults
- in respect of businesses with fewer than 10 employees and genuine start-ups the Government will introduce a moratorium exempting them from new domestic regulation for three years. These businesses will therefore be exempt initially if the Government extends the right to request flexible working to all employees and if it creates a new flexible system of shared parental leave (both of these measures will be consulted on later this year)
- the right to request time off to train will not be extended to businesses employing fewer than 250 people.