An electrician who was called a “bald c***” by a colleague was a victim of sex-related harassment, a tribunal has found.
The Sheffield tribunal found that the claimant, Mr A Finn, who was employed at the British Bung Company, had also been harassed and threatened with physical assault after he questioned a colleague about a piece of machinery.
It found that the “bald c***” insult was “unwanted conduct'', and that despite the fact that “industrial language was commonplace on this West Yorkshire factory floor”, Finn’s colleague “crossed the line” by referring to his appearance, creating an “intimidating, hostile, degrading, humiliating or offensive environment”.
The tribunal also found there was “a connection between the word ‘bald’ on the one hand and the protected characteristic of sex on the other”, and although the respondent argued that women as well as men could suffer from hair loss, the tribunal found that men are much more likely to be bald.
Finn, who had an “unblemished disciplinary record” for 24 years, had worked at the family-owned manufacturer of wooden beer casks from 22 September 1997 until his dismissal on 25 May 2021.
The events leading up to his dismissal began on 24 July 2019, when an altercation occurred between Finn and a colleague, Mr J King, who worked as a shift supervisor. Finn had been looking after a piece of machinery that was covered by King. According to the claimant’s version of events, King called him a “stupid old bald c***” and threatened to “deck [him]” after he was asked to help with the task.
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King “candidly” accepted that he had referred to Finn as such, and told the tribunal that he was going to “knock him out”.
Finn went to the supervisor’s office but, at the request of the supervisor, dropped the issue. The tribunal found that Finn was “prepared to let bygones be bygones”, and there were no more “unsavoury incidents” between Finn and King until March 2021.
During the pandemic, Finn was furloughed and would occasionally come into work to complete tasks on an ad hoc basis. On one such occasion, on 25 March 2021, he had been instructed to shut down a machine and approached King – the only supervisor on duty – to authorise this. King brought in the production manager, Chris Hardcastle, who disputed that the machine needed to be shut down.
According to Finn, Hardcastle started swearing at him so he swore back. King told Finn not to swear at Hardcastle, and an argument ensued between the two. Finn alleged King then called him an “old bald c***” and threatened physical violence. King denied these allegations, and the tribunal found he “did not make pejorative remarks about the claimant’s age or appearance”, but that he did threaten Finn with physical violence.
Between 25 March and 8 April, Finn had no contact with anyone at The British Bung Company, but got back in touch about a query over his payslip. He was subsequently invited to an investigatory meeting about the incident in March, and to prepare, Finn’s son, a police officer, helped him write a witness statement. They used a template that was headed ‘West Yorkshire Police’ and included the words “‘WITNESS STATEMENT’ (Criminal Justice Act 1967, s9; Magistrates’ Courts Act 1980 s5B; Criminal Procedure Rules, Rule 16.2).’”
There were no contemporaneous notes of this meeting, but the tribunal heard it ended abruptly when Finn presented his witness statement.
Following the meeting, in a letter sent to Finn on 13 April, his employer said the implications of his witness statement were “very serious”. Finn replied explaining that it was prepared by his son and “was not done with the intention to mislead anyone”. However, following a disciplinary hearing to discuss the witness statement, Finn was told by letter on 25 May that he was being dismissed for gross misconduct.
The dismissal letter alleged Finn had “deliberately provided a witness statement which falsely suggested on its face and by its content, that it had been made to, and taken by, West Yorkshire Police in connection with the investigation of an alleged crime”. Finn appealed but failed.
In its judgment, the tribunal found Finn was a victim of harassment relating to sex as a result of the incident in July 2019. Although the claim was brought 18 months out of time, the tribunal extended the time because it was “in the public interest that such complaints are considered and adjudicated upon and that wrongdoers are held to account”.
Claims of harassment related to age and sex as a result of the March 2021 incident were dismissed. Claims of making a detriment arising from protected disclosures were also dismissed.
However a claim of detriment arising from a health and safety reason succeeded because Finn was “ostracised and ignored” and his claims were not properly investigated by the respondent following the March 2021 incident.
The complaint of wrongful dismissal succeeded because – while Finn could reasonably be found guilty of destroying the trust between employer and employee with his witness statement – it found that his intentions in presenting the statement were “to be helpful and preserve the relationship” and that Finn had tried “no fewer than seven times” to reassure his employer that there was no police investigation.
A claim of unfair dismissal was also successful on the grounds that the employer did not act in good faith during the disciplinary procedure, however another claim that Finn was unfairly dismissed for a protected disclosure failed.
Alexandra Mizzi, legal director at Howard Kennedy, said that while hair loss was not only a male problem, the tribunal took a “common-sense view” in this case.
She added: “As there's no freestanding claim in law for workplace bullying, claimants often have to bring claims under anti-discrimination law,” meaning it was reasonable for the claimant to argue the ‘bald’ comment was sex related.
Alex Watson, employment partner at Fieldfisher, cautioned that employers that failed to identify or react to sensitive employee issues would face the risk of costly tribunal claims. “We are seeing this happen more and more in this day and age", he said.
The award for compensation will be determined at a later date.
The British Bung Company has been contacted for comment. Finn could not be contacted.