In this article...

• When is a pregnancy not a pregnancy?
• When is homophobic banter not homophobic banter?
• When is unpleasantness not harassment?

When is a pregnancy not a pregnancy?

In Mayr v Bäckerei und Konditorei Gerhard Flöckner the European Court of Justice was asked to consider at what stage women undergoing in vitro fertilization (“IVF”) treatment are “pregnant” for the purposes of the EC Pregnant Workers Directive.

The ECJ said pregnancy does not occur prior to a fertilised ova being transferred to a uterus and, therefore, women are not “pregnant” at this stage in IVF treatment.

The ECJ also said, in any event, the effect of granting protection at this stage in conception could result in injustice because fertilised ova can be stored for extended periods of time, as a precautionary measure. The ECJ said this would provide women with protection under the Directive for much longer than would be fair.

However, women undergoing IVF treatment are not left entirely unprotected as a result of the ECJ’s decision. The ECJ went on to hold that, as only women can undergo IVF treatment, any discrimination against them on those grounds would amount to unlawful direct discrimination.

So, whilst the ECJ has declined to extend the remit of the Directive to women undergoing IVF treatment, remember that any adverse treatment of women on these grounds may amount to direct sex discrimination.

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When is homophobic banter not homophobic banter?

Back in the UK, the Employment Appeal Tribunal (“EAT”) recently looked at the scope of the Sexual Orientation Regulations 2003 (“the Regulations”) and, like the ECJ, has also taken a narrow approach.

The Regulations outlaw discrimination on the basis of an individual’s actual sexual orientation and also on the basis of their perceived sexual orientation. So, it is unlawful to discriminate against an individual because they are known to be homosexual or, equally, because they are thought to be homosexual. In English v Thomas Sanderson Blinds Limited the EAT considered whether the Regulations apply to homophobic banter directed towards a man whose colleagues knew not to be homosexual.

Mr English complained that he was subjected to homophobic sexual innuendo by his colleagues, which started after a manager learned that Mr English had attended a boarding school and lived in Brighton. However, it was common ground between the parties that Mr English was not homosexual and his colleagues knew that he was not homosexual.

Accordingly, the Employment Tribunal concluded that Mr English could not benefit from protection under the Regulations because he was not homosexual nor perceived to be so by his harassers, and the EAT agreed.

The EAT said that the homophobic banter was unacceptable, but was not based on Mr English’s actual or perceived homosexuality, so could not fall within the remit of the Regulations.

This may not be the last of this matter as Mr English has leave to appeal, and the EAT has suggested that the result in this case may be due to a drafting error in the legislation.

However, in the meantime, this is an employer friendly decision, as the scope of the Regulations has remained narrow.

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When is unpleasantness not harassment?

The Court of Appeal, in Sunderland City Council v Conn, also took a robust approach towards a complaint of harassment, this time in relation to a complaint under the Protection from Harassment Act 1997 (“the Act”).

Since the 2006 case of Majrowski v Guy’s and St Thomas’s NHS Trust, employees who have suffered harassment at work have begun to claim under the Act, and this has become a popular line of argument for claimants. In this case, Mr Conn complained that the foreman for whom he worked had:

		threatened to punch out the windows of Mr Conn’s cabin and have him and two colleagues “up before the personnel dept”; and
		threatened Mr Conn with a “good hiding”, whilst shaking with rage and telling Mr Conn that he “knew where he lived”; and
		told a witness to the above incident to “f*ck off”.

The Court of Appeal held that this behaviour, whilst perhaps unattractive and even unreasonable, did not amount to harassment as defined by the Act.

The Court noted that a flexible approach needs to be taken towards the boundaries between (illegal) harassment and (legal) unpleasant behaviour. The Court said that that what might not be harassment on the factory floor or in the barrack room might well be harassment in the hospital ward, and vice versa.

Ultimately, the Court held that the touchstone for defining harassment under the Act will be whether the conduct is of such gravity as to justify the sanctions of criminal law. This high benchmark may well help to abate employment claims under the Act.

However, be aware that the Court has confirmed that the context in which harassment takes place will be key; each complaint will, therefore, need to be considered on a case-by-case basis.

It remains important to ensure that all staff are aware of conduct that may amount to harassment, and are informed that harassment will not be tolerated.