In the latest of our series of posts examining cases from the Employment Tribunal archive, we take a look at the case of Callahan v Benchmark Cleaning Services Ltd ET/3200640/2013. In this case the Employment Tribunal found that a manager’s comments about an employee’s sexuality (including greeting the employee “hello darling” with a limp wrist gesture) constituted direct sexual orientation discrimination but did not constitute sexual orientation-related harassment.

The facts in Callahan v Benchmark Cleaning Services Ltd

Mr Callahan, who is homosexual, commenced employment with Benchmark Cleaning Services Limited (“Benchmark”) on 14 September 2011 at its open-plan London office. The company was owned by Mr Raji, who was also a director of Benchmark. Ms Smith was Mr Callahan’s line manager; Ms Smith’s manager was, in turn, Mr Raji.

Mr Callahan was open about his sexual orientation in the office and was viewed by colleagues as “domineering” and “highly confident”. Mr Callahan had a number of arguments with Mr Raji but Mr Raji viewed him as extremely competent at his job and as valuable to the team.

On one occasion Mr Raji gave staff gifts following a holiday in Dubai. Mr Raji gave Mr Callahan a pink key ring and a pen.

On several occasions Mr Raji made a “limp wrist hand gesture” and said “hello darling” to Mr Callahan. Mr Callahan’s position was that he originally viewed this as a joke but stopped seeing it as such as time passed.

On two occasions, in February and April 2012, Mr Raji made comments to the effect that he did not understand “why God had made homosexual men”, and that this was not “right or fair”. The context for one of these occasions was that there was a discussion between Mr Raji and Mr Callahan about religion, and that Mr Raji said that his church (the Pentecostal Church) did not accept homosexuality.

On 29 November 2013 Mr Callahan and Mr Raji had an argument about whether Mr Raji had put a comma or a full stop in a handwritten letter. As a result of this argument Mr Callahan resigned that day; Mr Raji gave him leaving present and Mr Callahan told Mr Raji that he had “no hard feelings”.

Mr Callahan subsequently made claims for direct sexual orientation discrimination and sexual orientation-related harassment.

The Employment Tribunal’s decision in Callahan v Benchmark Cleaning Services Ltd

The Employment Tribunal held that Mr Callahan had not been subjected to harassment on the grounds of his sexual orientation. The Tribunal found that the “hello darling” comment and limp wrist gesture were “humiliating” and Mr Raji’s comments about about God and homosexuals were “insulting”, and that both incidents constituted detrimental treatment towards Mr Callahan. However, the Tribunal found that Mr Raji’s conduct in both respects were not related to Mr Callahan’s homosexuality, finding that the “hello darling” comment was Mr Raji trying to be funny and, further, that the comments relating to God and homosexuality were made in the context of a discussion about religion. As such, Mr Raji’s conduct did not have the purpose of creating a prohibited environment for Mr Callahan and, further, the Tribunal found that the relevant conduct did not have the effect of creating a prohibited environment for Mr Callahan: the incidents were relatively isolated over a period of time and Mr Callahan otherwise appeared to be “happy and content in the workplace”.

The Tribunal did, however, conclude that Mr Raji’s conduct constituted direct discrimination: his conduct towards Mr Callahan constituted a detriment (as detailed above) and there was no evidence that Mr Raji ever made hand gestures to other staff, made fun of anyone else’s sexuality, or questioned why God had made heterosexual people.

The Employment Tribunal found in Mr Callahan’s favour in his claim for direct sexual orientation discrimination and awarded him £2,000 for injury to feelings.

Our solicitors’ comments

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case shows that it can often be difficult for employees to succeed with harassment claims if they have not submitted formal written complaints about conduct in the workplace that they subsequently rely on in Employment Tribunal proceedings as constituting incidents of harassment.”

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Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees

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