Homophobic banter not covered by Sexual Orientation Regulations, warns legal specialist

Employers are being advised not to be complacent in the wake of a recent employment tribunal which found that some areas of homophobic banter in the workplace may not be covered under current sexual orientation regulations.

The tribunal (English v Thomas Sanderson Blinds) raised the question of whether the regulations covered homophobic banter directed towards a man who was not gay, was not perceived or assumed to be gay by his fellow workers and accepted that the ìharassersî do not believe him to be gay.

Jean Sapeta, Head of Employment at Hempsons comments: ìThe appeal tribunal found that current regulations did not protect the claimant. This is because ultimately the defendant was not gay, his friends and colleagues knew he was not gay, but he was just being called gay by his colleagues as a way of teasing him. If the claimant had actually been gay then the tribunal would have had a completely different outcome as the claims would have fallen within the scope of the legislationî

However the Judge, Peter Clark, believed the scope of the regulations to be too restrictive when dealing with such cases. Judge Clark questioned whether or not the regulations complied with the European Directive which they were meant to implement and said his decision would probably have been different if the case had been decided under that directive and he referred the matter up to the Court of Appeal.

Jean Sapeta adds: ìEmployers should not be complacent and allow such banter to go unchecked. Usually homophobic banter will be caught by the sexual orientation regulations because it will be clear that the abuse was on the grounds of the victimís sexual orientation, whether they were actually gay or just perceived to be gay.

ìIn any event, if not caught by the regulations such comments are likely to fall foul of other legislation and should not be permitted in the workplace.î