Ground breaking case could stop office banter

A ground breaking court case is set to put a stop to banter in the office, warn top Cardiff law firm Dolmans.

The Court of Appeal hearing determined that jibes made in the workplace didnít have to be true to be discriminatory.

Stephen English v Thomas Sanderson Ltd. saw a heterosexual man uphold a case against his employer after he was taunted for being gay.

Jeremy Consitt, employment solicitor at Dolmans in Cardiff, explained: ìThe man in question was married and there was no reason to suspect he was gay. However, because he was from Brighton and because he had gone to boarding school the offensive taunts started from his colleagues that he was gay. His colleagues used offensive comments against him several times and there were also lurid comments in the house magazine on at least two occasions.

ìHe took the matter to an Employment Tribunal claiming he had been harassed on grounds of sexual orientation. He accepted that he knew his colleagues didnít think he was gay, the remarks were just designed to wind him up.

ìThe employment tribunal had to decide whether or not this was actually harassment on grounds of sexual orientation. There have only been previous cases of this kind where the victim is actually gay, lesbian or bisexual or are perceived to be so and the regulations accept this as harassment.

ìWhat is unusual about this case is that there was no perceived issue on his sexuality. For the first time, the employment tribunal determined that the employee was discriminated by on the grounds of sexuality even though he wasnít gay which was known by his colleagues.

ìThe case then went to the Employment Appeal Tribunal and they reversed the decision saying that the claim would only stand if the man was actually gay or perceived to be gay.

ìHowever, the case has now gone up to the Court of Appeal in front of three Judges and the original judgement was upheld so the man won his case.

ìThey decided that the harassment was sufficiently nasty and clearly on the ground of sexual orientation and that was enough to spark off what the legislation says.

ìThis is the first case on this issue and could affect how colleagues interact with each other in the future. The judgement will affect all areas of discrimination - sex, gender, race, disability, age, religion as well as sexual orientation. Itís really opened up many potential situations because people do make jibes in the workplace from time to time.

ìFor instance, you may forget something and someone calls you senile even if youíre not. This could now count as being discriminatory and we could start seeing more of these cases in the courts.

ìThere are two kinds of employers in regards to how this news is received – those who panic and become ultra politically correct and those who will respond in a more pragmatic manner, dealing with these situations as and when they arise. What is clear is that if a complaint is made, it will be taken more seriously and will need to be acted upon more promptly than might be happening now.

ìThe true impact of this case will filter through the system over a number of years. It has taken a lot of time for things like race and sexual discrimination to be taken as seriously as they are now. They are taboo topics and people have a better understanding of what they can and canít say. It will take more time for people to get a feel as to this decision and what its impact will mean.

ìIf what theyíre saying is true, it effectively outlaws any form of harassment on any ground of discrimination. This case leaves no scope to make any discriminatory comment at all. There is the argument of what might be called ëagreed banterí but anything other than that is not going to be acceptable. Youíve got to look at the way comments are made, whether in harassment or as a term of endearment or fun.

ìThere are different pieces of legislation dating back throughout the years from the Race Discrimination Act going back to 1975 all the way through to the Age Discrimination Act of 2003.

ìThere is an Equality Bill going through Parliament where the Government is trying to put it all into one big Act so that all cases are being dealt with in the same way - a unified approach.

ìThere are two sides to the coin here. Youíve got to stamp out discrimination and this certainly is a step towards this, but this decision is also going to affect people who are just having a laugh at work - whereís the line between the two?î