Before the change in employment legislation, lesbians, gay men and bisexuals who were discriminated against and harassed at work because of their sexuality had no protection by law and used domestic and European courts to seek protection against discrimination.
Lesbians, gay men, and bisexuals who were discriminated at work because of their sexuality were less successful using the sex discrimination argument. Neither domestic nor European courts agreed that discrimination against lesbians, gay men and bisexuals constituted sex discrimination.
In 1998, the European Court declared that EU sex equality legislation did not protect against discrimination on the grounds of sexual orientation. This was in the case of Lisa Grant v South West Trains supported by Stonewall. Lisa worked for the South West Trains company which provided benefits to its employees in the form of free travel for employees’ spouses and unmarried cohabitants who had been together for at least two years. South West Trains rejected such benefits to Lisa’s female partner of many years. Lisa claimed she had been discriminated against simply because of her sex - if she had been a man, and not a woman living with another woman, and applied for the benefits, she would have received them. The Court of Justice disagreed and said it was a case of sexual orientation discrimination and not sex discrimination. The Court stated that “in the present state of the law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriage or stable relationships outside marriage between persons of the opposite sex.”
In another case Smith v Gardner Merchant the Court of Appeal stated that there were circumstances where sex discrimination against a lesbian or gay man could constitute sex discrimination, but only where, for instance, a gay man had been treated less favourably than a lesbian or vice versa.
In a case of Swann v Thameslink an industrial tribunal dismissed the sex discrimination argument, but found that the applicant had been dismissed because of his homosexuality. When awarding the damages, the industrial tribunal took into account the equal opportunities clause in the applicant’s contract listing sexual orientation among other grounds.
In two recent cases, a lesbian teacher who had to leave school after being harassed because of her sexuality (Pearce v Governing Body of Mayfair School) and a gay man dismissed from the RAF because he was gay (Macdonald v Ministry of Defence), claimed sex discrimination. Shirley Pearce lost her case in all instances. In the Macdonald case, the Scottish Employment Appeals tribunal ruled that he had been discriminated against under the Sex Discrimination Act. The tribunal interpreted the word ‘sex’ as covering both ‘gender’ and ‘sexual orientation’ and by this made it clear that the comparator for a gay man or a lesbian would be heterosexual man or woman. The government successfully appealed this ruling at the Court of Session. Roddy Macdonald lost his appeal against this decision in the House of Lords. The House of Lords delivered its judgement in both cases in a single decision on 19 June 2003.
Stephen English won his case at the Court of Appeal, which ruled on 19 December 2008 that he had been the victim of sexual harassment at work after suffering repeated homophobic taunting, although he was not gay. English, an employee of Thomas Sanderson Blinds, was repeatedly taunted by colleagues about his sexual orientation, even though he is heterosexual and they knew that he was married. It was initially held by the court that the case did not fall under harassment on the grounds of sexual orientation because he was not homosexual. On appeal it was held that a person who is tormented by “homophobic banter” is subject to harassment on the ground of sexual orientation within the meaning of reg. 5 of the legislation, even though he is not gay.
Allwyn Rondeau was employed by G4S as a security guard at Heathrow. His supervisor sexually harassed him, and taunted him about his sexuality. When he rejected her advances, she made a complaint of inappropriate behaviour. The tribunal found against her, and awarded him compensation of £62.5k.
John Reaney won his claim of sexual orientation discrimination against the Church of England. Former Christian youth officer John Reaney was turned down for a youth worker's post after the Bishop of Hereford quizzed him for two hours about his personal life. The panel ruled that the Hereford Diocesan Board of Finance, representing the bishop, had unlawfully blocked the lay appointment on the grounds of sexuality. Reaney was awarded over £47k in compensation.
Marlene Bielak received compensation from retailer Next after an employment tribunal ruled she was subjected to homophobic harassment and unfairly dismissed. Bielak, a lesbian shop assistant at Next, suffered months of harassment by colleague Katrina Davies who played a Morrissey song referring to lesbians each time she entered the shop's stockroom. Davies and her husband, also an employee at the store, openly questioned whether Bielak and her partner were fit to raise their seven-year old son. After an incident where she was shoved and sworn at by Davies, Bielak lodged a complaint and went on sick leave. Next failed to deal with the complaint for 14 months leading to Bielak's eventual resignation.
An employment tribunal in Glasgow awarded the largest ever compensation to date under the Employment Equality (Sexual Orientation) Regulations 2003. Jonah Ditton, a media sales manager at CP Publishing Ltd, was awarded almost £120,000 by an employment tribunal for discrimination on the grounds of his sexual orientation. The tribunal found that Ditton's boss, Warren Paul, "overtly abused and humiliated him on the grounds of his sexual orientation." Ditton was sacked after just 8 days of being with CP Publishing. The tribunal found that "the conduct of the respondent was high-handed, malicious, insulting and oppressive" adding that "the manner of his dismissal was humiliating and degrading."
Chris Martin, a quality assurance officer at Parkam Foods Ltd, was awarded over £17,000 by an employment tribunal which found that he was the victim of discrimination and harassment under the Employment Equality (Sexual Orientation) Regulations 2003. Martin was suspended after complaining about pornographic and homophobic graffiti containing his name on a toilet wall. Martin resigned in protest when Parkam Foods failed to take his complaint seriously by refusing to investigate and repeatedly telling him to forget about his grievances and move on. The tribunal found that Parkam Foods did not appropriately deal with Martin's grievances due to "inbuilt prejudice" and the failure to take his complaint seriously "completely humiliated" Martin and aggravated the situation.
A lesbian couple were awarded a record, but undisclosed, six-figure pay-out after an employment tribunal found that Margaret Durman and Penny Smith, both nurses in a care centre run by Barchester Healthcare, were victims of sexual orientation discrimination. Barchester Healthcare sacked Durman and Smith following an anonymous allegation that accused the couple of allowing the physical and sexual abuse of residents. The tribunal reported that Barchester Healthcare mishandled the disciplinary procedure, suppressed documents and "trawled" staff for complaints. The tribunal ruled that the allegations of abuse were groundless, asserting that had the allegations been investigated properly "it would have revealed no possible cause for concern." The tribunal stated, "It is hard to see how any dismissal, conducted by an employer of such size, could be so very bad unless sexual orientation discrimination was the root cause of it. We are not satisfied that a heterosexual couple would have been treated the same."
A Bristol employment tribunal found that Anthony Gaman was the victim of discrimination on grounds of sexual orientation and unfairly dismissed by Bristol County Sports Club. The tribunal found that he was taunted with homophobic remarks and jokes, made by members of the club's committee including one staff member who remarked that "all gays are evil" and "all gays should be shot." Gaman was also made to staff the bar single-handedly, working 75-hour weeks at a rate of pay below the minimum wage level. When Gaman complained that he and his partner had been threatened with violence in the bar, he was dismissed - after a disciplinary hearing through which club members drank alcohol and made homophobic remarks. Gaman was awarded more than two year's net pay in compensation.
Durham City Council was found guilty of discriminating against a gay theatre worker who suffered months of bullying and harassment at the hands of his manager. The Council were also found to have constructively and unfairly dismissed Fausto Gismondi, who was group bookings coordinator at Durham's Gala Theatre. Fausto was repeatedly referred to as “gay boy” by his manager Ed Tutty. The tribunal commented that “it is hard to envisage conduct more likely to shatter the trust and confidence of an employee in his employer,” and the council had “signally failed in their duty to an employee who has been bullied and harassed, contrary to their own express policies.” Durham City Council and the harasser were both found by the tribunal to have breached the Sexual Orientation Regulations.
The first worker in Britain to win a case under new legislation that bans gay discrimination at work was Robert Whitfield, a gay office manager who claimed constructive dismissal on the grounds of sexual orientation. He won £35,000 at an employment tribunal, at which he said that his sales manager continually referred to his sexuality and once phoned him saying: "Just a queer word - err, I mean just a quick word," and that he was taunted as a “queen” for ordering a cocktail. The Stratford tribunal found that Whitfield had been victimised because of his sexual orientation and had suffered sustained abuse at waste disposal company Cleanaway UK.
Stonewall chief executive Ben Summerskill said, "Rob had been subject to sustained harassment over a period of time. This sort of workplace bullying doesn’t just hurt people, it hugely undermines productivity in workplaces across Britain. Employers need to recognise their obligation to protect the 1.7 million gay staff in the UK workplace from this sort of harassment."
Alan Whitehead resigned from his job at the Brighton Palace Pier after finding out that he had been the subject of a homophobic remark from a colleague. In his claim for unfair dismissal and harassment, Whitehead told an employment tribunal that his dignity had been violated. The tribunal held that the term used was "exceptionally offensive" and awarded the claimant nearly £10,000 in compensation. Experts say the case is a landmark ruling that in effect prohibits the use of homophobic language in the workplace, and has important implications for all employers because the offending comment was not made directly to the victim.
Mr Brooks was subjected to inappropriate language and behaviour by colleagues at Findlay Industries over a number of months because he was gay. He was successful in his claims of harassment and discrimination on the ground of sexual orientation against his employer. None of the employees had received training on sexual orientation, and the employer did not take the complaints of harassment seriously. Based on his distress, the employer ought to have taken action regardless of the fact that Mr Brooks had asked him not to. The tribunal awarded Mr Brooks £15,727 for unlawful discrimination and harassment.
Mr Mann won his case against his employers BH Publishing Ltd. Mr Mann was harassed and suffered direct discrimination on the ground of his sexual orientation when his manager continued to mimic him after Mr Mann had asked him to stop because he felt it was creating a homophobic atmosphere in the workplace. In the tribunal's view, once the manager knew of the complaint it was impossible to conclude other than that his continued mimicking was on grounds of sexual orientation.
A unanimous House of Lords ruling confirmed that an employer can be held vicariously liable under Protection from Harassment Act 1997 for their employees' acts of harassment.
William Majrowski, a gay audit coordinator at Guy's and St Thomas' NHS Trust, was the victim of homophobic bullying and harassment by his line manager. Majrowski claimed that his boss, Sandra Freeman, was excessively critical of him; that she refused to talk to him; that she was rude and abusive to him in front of other staff; and that she imposed unrealistic targets for his performance. An internal investigation found that harassment had occurred; however Majrowski sued the Trust under the Protection from Harassment Act arguing that the Trust was vicariously liable for the behaviour of the manager who harassed him. This ruling reaffirms the responsibility of employers to provide a workplace free from harassment contending that where one employee, during the course of their employment, harasses another employee or anyone else, the employer will be vicariously liable for that harassment.
Contrary to claims under anti-discrimination Acts, employees will not have to prove that they developed a psychiatric illness (stress or anxiety are sufficient) or that the employer should have foreseen what happened, representing a lower hurdle for employees to clear in making harassment claims.
A UK designer who was dismissed for using a company computer to send explicit e-mails to her lesbian lover won her claim for unfair dismissal. A Nottingham employment tribunal had heard that Helen Brearley was fired from shop fitting company Timber Tailors because she had let her standard of work slip because of her "excessive" email use, which the company said constituted gross misconduct.
Brearley claimed that she was unfairly dismissed. “I was not aware the content was in any way against company policy, as they were personal emails,” Brearley said. The tribunal awarded Brearley £26,245 for unfair dismissal and said that the firm had “grossly overstated” the problem and that they should have warned her instead of sacking her.