“He called me bald!” – now that’s not very nice, but is it sexual harassment? Well according to the Employment Tribunal … yes it is!
Harassment is defined under section 26 of the Equality Act 2010 as:
• Unwanted conduct;
• That is related to a protected characteristic (i.e. gender reassignment, race, religion/belief, sex, sexual orientation, age, pregnancy/maternity, marriage/civil partnership and disability); and
• Which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
A claim for harassment can be brought against the individual who committed the unwanted conduct, as well as their employer.
In the recent case of Finn v (1) British Bung Manufacturing Co Ltd (2) King [2023] EAT 165, the Tribunal considered whether referencing to someone’s baldness amounted to sexual harassment within the meaning of the Equality Act definition.
Background
The Claimant, Mr Finn, was an electrician and worked for the first Respondent, British Bung Manufacturing Co Ltd (BBM), which is a predominantly male-dominated business where it is also fairly run-of-the-mill to overhear rude or offensive language (also referred to as ‘industrial language’).
During his employment, Mr Finn had a rather heated argument with the second Respondent, Mr King, during which Mr King threatened him with physical violence and called him a ‘bald c*&t’.
Mr Finn subsequently brought a claim for harassment related to sex in respect of this particular comment during his altercation with Mr King.
The case was heard in the Employment Tribunal earlier this year, where the Tribunal considered whether this conduct amounted to harassment within the meaning of the Equality Act.
Although the Tribunal noted that salty language within the workplace was certainly not out of the ordinary, it came to the view that by referring Mr Finn’s appearance, Mr King had taken things a step too far. The Tribunal found that the conduct was most definitely unwanted and that the words used had the purpose/effect of violating Mr Finn’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
The remaining question was: did baldness relate to a protected characteristic, namely, sex?
Ultimately, the Tribunal deemed there to be an intrinsic link between the two as it considered that although women too could be bald, ‘baldness is more prevalent in men than women’. Consequently, the definition for harassment was met and Mr Finn was successful with his claim.
The Appeal
BBM appealed the outcome of the claim on the basis that for the harassment to be related to sex, it needs to apply to one sex (i.e. men) and not the other (i.e. women). It was their position that as baldness also affected women, this could not be made out and the original decision was therefore incorrect.
The Employment Appeal Tribunal (EAT) dismissed this argument on the basis that there was no requirement in law for harassment related to sex to not also apply to the other sex and that the Tribunal’s original decision therefore still stands.
Learning Points
Whilst this gives some interesting food for thought as to what can amount to harassment related to sex, it is also another example of where an employee’s conduct can also expose the employer to the risk of a Tribunal claim. It is also a wake-up call for certain industries that the use of offensive language in the workplace, even if it is commonplace, can still be considered ‘unwanted conduct’ for harassment purposes.
Employers should consider arranging regular training for all staff as to what is / is not acceptable language in the workplace and also what can be considered harassment. Employers should also take steps to ensure that their relevant policies / handbook are up to date and outline clearly to their employees what would be considered misconduct or gross misconduct.
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