The recent case of English v Thomas Sanderson Ltd. [2009] demonstrates how far the English Courts and legislation goes in protecting individuals from harassment at the workplace on the basis of their sexual orientation.

The English Court of Appeal, giving its verdict, held that harassment at the workplace on the grounds of sexual orientation can occur irrespective of the victim's actual sexual orientation or the harassers' perception of the victim's orientation.

The claimant, Mr. English, alleged that he was continuously subjected to 'homophobic banter' and sexual innuendo from a number of his colleagues who were suggesting that he was a homosexual. The claimant alleged that the taunting of his colleagues drove him to leave his job. However, the claimant was actually a heterosexual, a married man with three children. His colleagues knew this, and were aware that Mr. English was not a homosexual.

The English Court of Appeal held that, on the facts it did not matter if Mr. English was gay or not. The calculated insult to his dignity, which did not depend on his actual sexuality, and the consequently intolerable working environment were sufficient to bring his case within the relevant English legislation – Regulation 5 of the Employment (Sexual Orientation) Regulations 2003.

The Court added that a claimant did not have to declare his or her true sexual orientation in order to establish that the abuse was on grounds of sexual orientation. What was required was that the claimant's (or someone else's) sexual orientation, whether real or supposed, was the basis of harassment directed at him or her.

Accordingly, it was held that Mr. English did not have to prove whether he was a homosexual or not as it was irrelevant to his case. It was also irrelevant whether the harassers actually thought that the victim was a homosexual.

It is unlikely that a similar claim would succeed in the Bermuda Courts as current legislation does not protect anyone from harassment on the basis of their sexuality. Bermuda is falling behind other jurisdictions when it comes to protecting individuals from such harassment. The United Kingdom, Canada, Australia, and the European Union have all implemented legislation prohibiting discrimination on the grounds of sexual orientation.

In Bermuda claims of sexual harassment are brought under the Human Rights Act 1981 or the Bermuda Constitution.

However, neither of these instruments prohibits discrimination on the grounds of sexual orientation. The Human Rights Act does not include sexual orientation as a prohibited ground of discrimination and the Bermuda Constitution only protects against discrimination on the grounds of race, place of origin, political opinions, colour or creed.

Attorney Adam Collieson is a member of the Litigation and Insolvency Practice Group at Appleby. A copy of Mr. Collieson's column can be obtained on the Appleby website at www.applebyglobal.com. This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.