Homophobic banter aimed at straight worker is discriminatory

If you are an employer reading this article you will almost certainly groan at the ‘red tape’ that is an inevitable consequence of employing people. The potential consequences in the workplace of cases such as the one reported here, are not going to make life any easier for employers. 

Anti-discrimination laws started in the 1970s with the introduction of race relations legislation, and this was extended over the following decades to cover further issues, including age, gender and sexual orientation.  In an employment context, the protections were originally aimed at the activities of the employer.  However, in recent times, what goes on in the workplace itself has increasingly come under the spotlight – and the employer now risks paying the price for allowing any harassment based on these prejudices to continue.

A court has recently decided that homophobic banter directed at an employee who was not gay, and was known by his tormentors not to be gay, amounted to harassment on the grounds of sexual orientation.  The claimant alleged that four work colleagues had subjected him to a protracted period of sexual innuendo suggesting that he was homosexual.  He claimed that they repeatedly called him offensive names because he had attended boarding school and lived in Brighton.  He was not, in fact, gay, but happily married with three children, and his colleagues were perfectly aware of this.  He also knew that his colleagues did not believe him to be gay.  Nevertheless, the court found in his favour, not against his colleagues, but against his employer.

The case may have significant consequences for other areas of UK discrimination law.  Legislation relating to race, religion and age all contain similar definitions of harassment to that contained in the Sexual Orientation Regulations.  This decision could now, for instance, give scope for harassment claims to be brought under the age discrimination regulations by individuals who have been teased about being older or younger than they really are, even where the perpetrators know their real ages.  

Many employers may well feel that cases such as this go too far and stretch the boundaries of the context and political/legal justifications for these anti-discrimination laws. Whether or not that is your view, the advice for employers must be to ensure that they have a comprehensive equal opportunities policy and that all employees are made fully aware of its meaning and the consequences of any breach.  Also, employers should ensure that their management is appropriately trained and, above all, remains vigilant so that they can stamp out any inappropriate conduct.

Raworths’ Employment Unit runs free bi-annual seminars on changes in Employment Law. The next seminars take place on Tuesday 17th March, Wednesday 18th March, Thursday 19th March and Friday 20th March. For full details on the topics covered and seminar times, and to book a place, please contact Pauline Sellers on 01423 566666 or email Pauline.sellars@raworths.co.uk.

Kerry Waters is a solicitor at Raworths LLP specialising in employment law. To contact Raworths, telephone 01423 566666 or visit our offices at Eton House, 89 Station Parade, Harrogate HG1 1HF. Or visit our website on www.raworths.co.uk or email kerry.waters@raworths.co.uk