Sexual orientation and gender identity
Sexual orientation and gender identity

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Sexual orientation and gender identity

Activity 5: Homophobia in the workplace

You should allow yourself 40 minutes to complete this activity.

This activity relates to the entry ‘2003 (Legal) Employment rights’ that appears in the timeline in Section 2.1.

Employees at a company believe that one of their male colleagues is gay. As a result, they engage in homophobic banter aimed at their ‘gay’ colleague. The employer knows that this homophobic banter is taking place and fails to prevent it.

Under reg 5 EE(SO)R 2003 harassment on grounds of sexual orientation was defined as:

Harassment on grounds of sexual orientation

(1) For the purposes of these Regulations, a person (‘A’) subjects another person (‘B’) to harassment where, on grounds of sexual orientation, A engages in unwanted conduct which has the purpose or effect of –

  • a.violating B’s dignity; or
  • b.creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Regulation 22 EE(SO)R 2003 sets out the liability of employers:

Liability of employers and principals

(1) Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of these Regulations as done by that other person as well as by him.

(3) In proceedings brought under these Regulations against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.

Is the company liable for harassment? Note down your answer below, giving reasons.

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You should probably have concluded that the company is liable under reg 5. On the facts, the employer has failed to take reasonably practicable steps as required by reg 22(3). The question for the tribunal will be whether the banter has violated the dignity of the person who is the target of the banter, or whether the banter has created an intimidating, hostile, degrading, humiliating or offensive environment for that person.

However, suppose the target is not actually gay, but is believed by his fellow workers to be gay. Do the regulations protect him? Should the regulations protect him? Change the facts slightly: suppose the target is not actually gay, and is not believed by his fellow workers to be gay – but nonetheless his fellow workers choose to abuse him for being gay. This issue came before the courts in English v Thomas Sanderson Blinds. According to the facts determined in the Employment Tribunal (ET), Mr English’s work colleagues did not believe Mr. English to be gay. However, because he fitted two stereotypes assumed to be linked to being gay – namely he lived in Brighton and was educated at a boarding school – his fellow workers decided to target him with homophobic remarks. Both the ET and the Employment Appeal Tribunal (EAT) held that Mr English was not protected because the abuse was not directed at his actual sexual orientation. Interestingly, the EAT concluded that if the Regulations had carried out the aims of the EC Equal Treatment Directive, which that had led to the passage of the Regulations, he would have been protected. The Directive had called for protection to be put in place where treatment ‘related to’ sexual orientation. The Regulations, as passed by the UK government, covered discrimination ‘on grounds of’ sexual orientation. The difference, in the view of the EAT, was crucial.

Mr English appealed to the Court of Appeal (English v Thomas Sanderson Blinds [2008] EWCA Civ 1421; [2009] IRLR 206), which held that he could succeed in his action. As Justice Sedley stated:

[T]he single critical assumed fact was that the appellant was repeatedly taunted as gay. In my judgment it did not matter whether he was gay or not. The calculated insult to his dignity, which depended not at all on his actual sexuality, and the consequently intolerable working environment were sufficient to bring his case both within reg. 5 and within the 1976 Directive. The incessant mockery (‘banter’ trivialises it) created a degrading and hostile working environment, and it did so on grounds of sexual orientation. That is the way I would prefer to put it. Alternatively, however, it can be properly said that the fact that the appellant is not gay, and that his tormentors know it, has just as much to do with sexual orientation – his own, as it happens – as if he were gay. [Para. 37]

If, as is common ground, tormenting a man who is believed to be gay but is not amounts to unlawful harassment, the distance from there to tormenting a man who is being treated as if he were gay when he is not is barely perceptible. In both cases the man’s sexual orientation, in both cases imaginary, is the basis – that is to say, the ground – of the harassment. There is no Pandora’s box here: simply a consistent application of the principle that, while you cannot legislate against prejudice, you can set out in specified circumstances to stop people’s lives being made a misery by it. (Para. 38)

There are also policy reasons why the distinction should be regarded as one without a difference. Sexual orientation is not an either/or affair. Some people are bisexual; some are asexual; some, including heterosexuals, have unusual interests or proclivities. All of these may desire to keep their orientation to themselves but still be vulnerable to harassment by people who know or sense what their orientation is. It cannot possibly have been the intention, when legislation was introduced to stop sexual harassment in the workplace, that such a claimant must declare his or her true sexual orientation in order to establish that the abuse was ‘on grounds of sexual orientation’. What is required is that the claimant’s (or someone else’s) sexual orientation, whether real or supposed, should have been the basis of harassment directed at him or her. That is what was going on here, even on the limited facts which were assumed to be the only relevant ones. The case would have been exactly the same if Mr English had elected, for whatever reason, to remain silent about his actual sexual orientation – for example because he took the principled position that it was nothing to the point. And the same would be the case if he were actually gay or bisexual but preferred not to disclose it. (Para. 39)

The judgment of the Court of Appeal is interesting. Judges interpret statutes and statutory instruments. Issues that have been decided by higher courts are binding on lower courts. Therefore, although Regulation 2 EE(SO)R 2003 might appear to give a fairly limited meaning to the term ‘sexual orientation’, following the Court of Appeal’s judgment in this case subsequent cases in ETs and EATs should interpret ‘sexual orientation’ as it was interpreted by the Court of Appeal. The Equality Act 2010 uses exactly the same wording for the meaning of sexual orientation as that adopted in the 2003 Regulations. Therefore, while the new Act post dates the Court of Appeal decision, it would be expected that the new Act would be interpreted in the same way as those words were earlier interpreted by the Court of Appeal.


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