16 June, 2009
In the past, discrimination in its most obvious form i.e. where one party is treated less favourably than another had been relatively easy to identify. However, in a recent case the position has potentially been widened and it could now be more difficult for employers to identify when acts of discrimination are taking place.
Clearly, it is easy to see that failing to promote a female colleague to a particular role simply on the basis that the employer in question believes she is more likely to have time off for child care commitments, can amount to discrimination on the grounds of the woman's sex. Further, if a disabled employee is not offered a job on the grounds of his disability, they would be able to argue that this potentially amounts to Disability Discrimination.
In both of those cases, the fact that the employee could be subjected to unlawful discrimination is obvious in that both the female employee and the disabled employee carry a particular characteristic (respectively, their sex and their disability) against which it is unlawful to discriminate.
However in a recent case, matters were not so straightforward. In the case of English -v- Thomas Sanderson Blinds, the Court of Appeal found that Mr English had been subjected to unlawful discrimination amounting to harassment on grounds of sexual orientation.
Mr English had been subjected to banter of a homophobic nature. Four of his colleagues subjected him to sexual innuendos that suggested in obvious terms that he was a homosexual – he had to endure names such as "faggot" amongst other acts of harassment. He was in fact a happily married man with 3 teenage children. Further, it was accepted by Mr English that his tormentors knew that he was not homosexual and that the "banter" was simply a way of, to put it mildly, teasing him. The reason for the banter was purely on the basis that Mr English had attended boarding school and that he had lived in Brighton.
Therefore, Mr English did not have the particular characteristic that would normally prevent him from being discriminated against on grounds on sexual orientation – in this case, he was not, nor was he thought to be, homosexual. The Court was therefore faced with a difficult situation when deciding whether conduct of this nature did amount to unlawful discrimination. In these circumstances, the Court of Appeal decided that this could amount to discrimination since this was entirely the sort of conduct that the legislation was designed to protect employees and workers against.
It should be noted that this overturned the previous decision of the Employment Appeal Tribunal.
No doubt all employers will have a policy to deal with bullying and harassment of whatever nature in any event, but employers should be aware of this decision and the potential impact that it could have. It means that many cases of harassment, no doubt serious in any event, could now also lead to claims of discrimination for which there is no qualifying period of employment. Discrimination can carry an unlimited award of compensation in an Employment Tribunal, and therefore, if any employer believes that this is potentially an issue for them advice should be sought as soon as possible.