The Employment Appeal Tribunal has endorsed a tribunal’s decision to reject a harassment claim, having taken into account evidence that prior to the incident he complained about the claimant had participated in similarly offensive conduct, and not made any form of complaint.
The EAT ruled that the tribunal had given proper consideration to the question of whether it was reasonable for the claimant to feel that the conduct complained of had an adverse effect on him, and had been entitled to conclude that it was not.
In English v Thomas Sanderson Blinds Ltd, English, who is heterosexual, complained of homophobic banter and sexual innuendo by his workmates. His claim of harassment on grounds of sexual orientation has been underway since 2008, and has been considered by an employment tribunal, the Employment Appeal Tribunal twice, and the Court of Appeal.
It was the Court of Appeal which ruled that his claim of sexual orientation HR was valid, despite his heterosexuality, and despite his colleagues being fully aware that he is not gay.
The employment tribunal which heard his original complaint upheld only one aspect of the harassment claim, which related to an article in the in-house magazine that triggered his complaint. It ruled that there had been no unlawful harassment until then, taking into account the fact that English had had engaged in banter and name-calling and had written similarly offensive articles ‘riddled with sexist and ageist innuendo’ for the magazine.
In addition to making no complaint about any of the banter, the tribunal also established that he was friendly with the people who he was complaining about. The tribunal also took into consideration that English’s behaviour had been extremely offensive, and reached the conclusion that his complaint was groundless.
The EAT rejected E’s appeal against that decision. It ruled that the employment tribunal had been correct to ask about English’s own perceptions and feelings in order to reach a conclusion about the reasonably-felt effect of the conduct he had complained about.