In the recent case of Finn v The British Bung Manufacturing Company, the Employment Tribunal concluded that calling a man “bald” amounted to sex-related harassment.
Under the Equality Act 2010, a person harasses another if they engage in unwanted conduct related to a protected characteristic and that conduct has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
Harassment claims can be brought against fellow employees as well as employers. Anything done by an employee in the course of their employment is treated as having also been done by the employer. However, there is a defence available if the employer can show that it took "all reasonable steps" to prevent the employee from doing the discriminatory act.
Mr Finn was employed as an electrician by The British Bung Manufacturing Company (the Company) for nearly 24 years. Throughout his long service, Mr Finn had never been subject to disciplinary action.
In July 2019, Mr Finn was involved in an altercation with his colleague Mr King. Mr King called Mr Finn a “stupid, bald c----" and threatened to “deck him.” Mr Finn decided not to take any formal action in relation to Mr King’s conduct. Between July 2019 and March 2021, no further issues or problems arose. On 26 March 2021, another altercation occurred during which Mr King allegedly referred to Mr Finn as a “bald c----" for a second time.
Mr Finn did not return to work after the incident of the 26 March and the Company did not make any attempts to contact him. Eventually, the Company invited Mr Finn to attend an investigation meeting on 13 April 2021.
During this meeting, Mr Finn handed over a printed, pre-prepared witness statement which was headed with the words "West Yorkshire Police". The Company thought Mr King had done this to deliberately mislead them in believing the incident had been reported to the police. Despite Mr Finn’s assurances that the matter had in fact not been reported to the police (his son was a police officer and had simply helped him with the statement), the Company made the decision to suspend him. Mr Finn’s employment was later terminated without notice, on grounds of gross misconduct, as the Company concluded they had lost trust and confidence in him as an employee.
Mr Finn brought a suite of employment claims against the Company and Mr King including a sex-related harassment claim, which has become the focus of recent media attention. In his claims, Mr Finn’s position was that Mr King’s reference to him being “bald” was clearly related to his sex.
The Tribunal had no doubt that Mr King’s actions and comments in July 2019 were unwanted conduct and, by Mr King’s own admission, the words he chose were said with the intention to threaten Mr Finn, and to insult him. The Tribunal analysed the precise words used by Mr King to establish whether there was any association to Mr Finn’s protected characteristic. The Tribunal held that baldness is much more prevalent in men than women and therefore, baldness is inherently related to sex. In contrast, they decided that baldness may affect men of all ages so it cannot be inherently related to age.
In coming to this conclusion, the Tribunal referred to another Employment Appeal Tribunal Case in which it was found that a woman had been subject to sex discrimination after a colleague made a comment about the size of her breasts. In this case, it was decided it was much more likely a woman would be on the receiving end of a comment relating to her breasts, than a man. Similarly, they decided it was much more likely a man would be on the receiving end of a comment which refers to baldness.
The Tribunal therefore concluded that Mr King’s conduct had the purpose or effect of violating Mr Finn’s dignity and created an intimidating, hostile, degrading, humiliating or offensive environment for him and such conduct was deemed to be harassment relating to Mr Finn’s sex.
This was a stand-alone act of harassment occurring on one day in July 2019. It was not part of a course of conduct. The claims were brought over 18 months after the usual legal time limit had expired. However, the Tribunal held that it was just and equitable to extend time.
This case is a reminder of the issues that can arise when comments are made between colleagues, particularly when such comments relate to personal appearance or characteristics. Even comments made a long time ago can be reignited, as in this case where time was extended for a meritorious claim.
A practical thing employers can do to seek to avoid this sort of situation is to have regular training for all staff so that the whole team is mindful of what can amount to harassment and discrimination generally. Also, dealing promptly with allegations of harassment in the workplace can head off this sort of claim before it becomes more serious.