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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. 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.
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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
Regulation 5 and within the 1976 Directive. The
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case on the question of whether a person can claim discrimination for sexuality without being (or without revealing that one is) actually gay. The Court of Appeal decided that it was irrelevant whether someone was gay or not or the bullies believe the person is gay or not, if the harassment has
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However, he then said that the claimant’s difficulty was that nobody thought he was gay (at 23), so that the harassment was not on grounds of sexual orientation at all. It was a ‘vehicle for teasing the
Claimant’ (at 24). He then said ‘without deciding the point, that the result may have been
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gave the first judgment, and dissented, saying there was no harassment under regulation 5.
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agreed with Sedley LJ, and said there was harassment.
227:'Landmark rulings strengthen gay rights in workplace'
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English v
Sanderson Blinds Ltd (2008) EWCA Civ 1421
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