Whilst it is not always possible to know, as most cases are settled and those that fight are not always reported, it appears that an employee has recently brought the first successful case under the new Employment Equality (Sexual Orientation) Regulations and there is another one well under way.
Rob Whitfield resigned from his position as a manager at Cleanaway, a waste management company and claimed constructive unfair dismissal, harassment and direct discrimination after having been subjected to sustained campaign of homophobic abuse. He was awarded £35,345 in compensation. Mr Whitfield was subjected to months of taunting based on his sexuality. He originally ignored comments as over exuberant banter. However, very quickly senior management started to make similar ‘jokes’. Eventually, Mr Whitfield spoke to his manager about it but he decided not to issue a grievance as it would involve him making his private life public and he wanted to keep them separate (had this claim been brought after 1 October 2004, under the new statutory procedures, he would have had to raise a grievance or he would have been barred from bringing an unfair dismissal claim). The derogatory remarks continued to such an extent that Mr Whitfield was so humiliated that he had no option other than to resign. The Tribunal supported the great work HR professionals have done in reducing homophobia in the workplace, and held that calling a homosexual man “dear”, “queen” or “abnormal”, describing his choice of drink as “feminine”, forcing him to wear a t-shirt with pink writing on it on stage at a conference because it was “just his colour” and making constant references to effeminacy and anal sex amounted to harassment and discrimination on the grounds of sexual orientation.
Another case has also found its way into the popular press, although we will have to wait until 22 February for a decision after the case was adjourned. Paul Phillips, a researcher who works for Candy Atherton, the Labour MP for Falmouth and Camborne, claims that she asked him to find out if Ashley Crossley (who was standing against Ms Atherton and who was rumoured to be homosexual), frequented Soho gay bars. Mr Phillips claims he was chosen for this “research project” by Ms Atherton because he was himself homosexual and so “would have more contacts than her”. Mr Phillips also claims that Ms Atherton displayed her homophobia with remarks about him bringing a friend to Ms Atherton’s mother’s house and by finding a knife attack which Mr Phillips suffered amusing. Ms Atherton’s lawyer has dismissed the claims as “fantasy”. The case is more one of principle than financial compensation. Mr Phillips resigned and almost immediately found other work, so his losses are minimal. Further, even though any award for injury to feelings in this case is likely to be low, whilst the facts are unusual, singling out an employee for a particular task – even a less obvious and shady task than this one – could certainly fall within the bounds of harassment or discrimination under the new sexual orientation regulations. So will Mr Phillips become the next person to successfully claim under the new regulations? Only time will tell.