Harassment claim fails where not reasonable for claimant to take offence
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21.3.2011 In Thomas Sanderson Blinds v English (No.2) the Employment Appeals Tribunal upheld a tribunal’s decision to reject a harassment claim, where the tribunal took into account evidence that the claimant had previously engaged in similarly offensive conduct. The claimant had also made no complaint until he deemed one particular incident had gone too far. The EAT found that the tribunal had correctly considered that it was not reasonable for the claimant to feel that the conduct in question had an adverse effect on him. The claimant, who was heterosexual, complained that his colleagues had been involved in homophobic 'banter’ and sexual innuendo. He brought a claim under Reg 5 of the Employment Equality (Sexual Orientation) Regulations 2003* of harassment 'on grounds of sexual orientation' and this was allowed to proceed by the Court of Appeal. It held that someone who suffers homophobic 'banter' at work, even though his colleagues know him not to be gay, is still protected by the Regulations. The case was passed down to the tribunal which upheld just one aspect of the harassment claim, relating to an article about the claimant in the in-house magazine that had prompted him to complain. It found that there had been no unlawful harassment up to that point. It considered evidence that the claimant had participated in banter and name-calling and had written similarly offensive articles which included ‘sexist and ageist innuendo’ for the same in-house magazine. Additionally, he had made no complaint before the magazine article and was actually good friends with those employees accused of the behaviour. Taking account of the claimant’s own ‘extremely offensive behaviour’, the tribunal concluded that he could not reasonably have considered that the conduct he now complained of had violated his dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for him (as per Reg 5(2)). The EAT rejected the claimant’s appeal against that decision. The tribunal had correctly followed the approach to harassment set down in Richmond Pharmacology v Dhaliwal. It had been right to ask about the claimant's own perceptions and feelings in order to determine the reasonably-felt effect of the conduct complained of. *Note that any similar claim in respect of behaviour which took place on or after 1 October 2010 will now be brought under the newly-introduced Equality Act 2010.
This bulletin is for general guidance purposes only and should not be used for any other purpose.
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