In the recent case of Finn v The British Bung Manufacturing Company Limited and Mr King, the employment tribunal addressed the question: does calling a male colleague a ‘bald c***’ amount to sex-related harassment? The employment tribunal found that under the Equality Act 2010, it did.
Finn had been employed as an electrician by the defendant for just shy of 24 years, when in May of 2021 he was dismissed. Notably, in July 2019, a dispute broke out between Mr Finn and Mr King, which resulted in King calling Finn a ‘bald c***.’
A further altercation also took place between the two men in March 2021. Finn then left the employer’s premises and there was no contact between Finn and his employer until two weeks later. Following the latter altercation and the employer alleging Mr Finn had breached their trust and confidence, he was dismissed on the grounds of gross misconduct.
Following these events, Finn brought eight claims against his employer, including harassment on the grounds of age and sex discrimination, ordinary unfair dismissal, automatic unfair dismissal and wrongful dismissal. The sex-related harassment claim is what has grabbed media attention.
What classifies as sex-related harassment?
To amount to harassment, the behaviour must be related to a protected characteristic. It is firstly important, to distinguish between the three different types of harassment relating to sex under the Equality Act:
sex-related harassment (relating to an individual’s sex);
sexual harassment (of a sexual nature);
less favourable treatment for rejecting or submitting to harassment.
Despite recent headlines wrongly and misleadingly suggesting this case constituted ‘sexual harassment,’ the case actually concerns sex-related harassment.
To pursue a successful sex-related harassment claim, there has to be ‘unwanted conduct’. Furthermore, the ‘unwanted conduct’ has to have the purpose or effect of either violating the claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment and be related to the claimant’s sex.
In the Finn case, it is clear that Mr King’s comment, addressing Mr Finn as a ‘bald c***,’ satisfies both unwanted conduct and having the purpose or effect of creating such environment. Although, the employment tribunal did recognise that industrial language such as the expletive used by King, was common in this workplace.
What is perhaps more controversial, is the disputed link between the word ‘bald’ and the protected characteristic, which in this case was Mr Finn’s sex. The three judges found that there was a connection between the word ‘bald’ and being male. While the tribunal recognised that women can also be bald, they considered that baldness is more prevalent in men than women, and therefore that the comment did constitute sex-related harassment.
The employment tribunal also cited Insitu Cleaning Co Limited v Heads, a case in which a male manager remarked ‘hiya, big tits’ to a female co-worker.
On this point, the court said that while ‘such a remark is inherently related to sex… a similar comment may be made to men with the condition of gynaecomastia’. Much like, while the majority of bald individuals identify as male, it is also possible to be bald and female.
Therefore, the claim for sex-related harassment in relation to calling a male, bald, against The British Bung Manufacturing Company Limited and Mr King succeeded.
It is notable that the comments were between two men in this case and there were also some interesting issues regarding the time limits, however, the tribunal held that it was appropriate to extend the time frame, to enable Mr Finn to bring his claim.
A final remedy hearing would deal with compensation, although there was also a finding that this would be reduced by 75 per cent as a result of Mr Finn’s own conduct.
What are the considerations for employers?
It is important to recognise that every case is different, and the circumstances, context and intentions will always differ, however, this is an important reminder that even in workplaces where industrial banter may be common, the law can still provide a remedy where this goes too far.
Employers should take steps to ensure employees are reminded of the importance of pleasant, respectful communication with their colleagues where appropriate. Diversity and other training can also play an important part of this, along with having clear, robust anti-bullying and harassment policies in place.
Julie Taylor is a partner and head of the employment team at Gardner Leader