In British Bung Manufacturing Company Ltd v Finn [2023 EAT 165], the EAT confirmed that an insult concerning a colleague’s baldness could be considered harassment relating to sex.
The Claimant, Mr Finn, had brought several claims in the Tribunal including unlawful harassment related to sex, wrongful dismissal and unfair dismissal. The main significance of the decision lies in the findings related to harassment.
To recap on the law subsections 1 and 2 of section 26 of the Equality Act provide as follows:-
- A person harasses another (B) if –
a) A engages in unwanted conduct related to a relevant protected characteristic and,
b)The conduct has the purpose or effect of –
- Violating B’s dignity, or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for BA also harasses B if –
2. A also harasses B if –
a) A engages in unwanted conduct of a sexual nature, and
b) The conduct has the purpose or effect referred to in subsection (1) (b)
This case concerned s.26 (1). Under S.26 (1) two tests therefore need to be met for the conduct to amount to harassment.
- The unwanted conduct in question must have the purpose or effect of violating the claimant’s dignity or creating an intimidating, etc environment for them.
- The conduct in question must relate to a relevant protected characteristic.
Where a direct reference is made to an employee’s protected characteristic, the necessary link will usually be clearly established. Where the link between the conduct and the protected characteristic is less obvious, then tribunals may need to analyse the precise words used, together with the conduct, to establish whether there is any negative association between the two.
Mr Finn was employed by the British Bung Manufacturing Company as an electrician and worked for them in a factory from 1997 until May 2021 when he was dismissed without notice. The Company is a small family business with around 30, mostly male, employees. The use of what the Tribunal called, “industrial language” was common on the shop floor.
In July 2019, Mr Finn had an altercation with a colleague, Mr King, in which Mr King called Mr Finn a “bald c***” and threatened him with physical violence. Mr King admitted his conduct and was given a warning. No further issues arose between Mr Finn and Mr King for the next 20 months.
Then in March 2021, there was another disagreement between them during which Mr King again threatened Mr Finn. Mr Finn then left the workplace having told his employers that he had had enough of Mr King’s behaviour and that if they did not sack Mr King, “that would be it”.
While he was off, the employer did not contact Mr Finn to check on his welfare and he was paid ssp only. He and his son raised this with the company and Mr Finn was invited in to an investigation meeting. Mr Finn provided a written statement about the incident with Mr King which his son had helped him to prepare. His son was a police officer and had prepared the statement on an official West Yorkshire Police template used for reporting crimes. When presented with this, the employer adjourned the meeting. When asked, Mr Finn told his employer that the police were not involved in the matter and that he and his son had simply used a template document to produce a written statement. However, his employer did not accept this and viewed it as an attempt to mislead and intimidate them and Mr Finn was dismissed for this without notice.
Mr Finn then brought Tribunal claims including for unfair dismissal, wrongful dismissal and harassment related to sex in relation to Mr King’s insult in which he had called him a bald c*** in 2019. The Tribunal extended the time limit in order for this claim to be allowed.
The Tribunal found that Mr Finn was not offended by the industrial language used – the expletive- but was offended by being called bald. The Tribunal was satisfied that the first limb of the test was met – that it was difficult to conclude other than that Mr King called him bald with the purpose of violating Mr Finn’s dignity and creating a humiliating environment for him.
The Tribunal then considered the issue of whether the expression “bald ” is harassment related to sex. In its judgment it concluded that there was a connection between being bald and the protected characteristic of sex. It stated that baldness is much more prevalent in men than in women and so it was found to be inherently related to sex. Since both tests were met, the harassment claim succeeded. It is interesting to note that the three Tribunal panel members in the case were male and bald – a fact remarked upon by the Judge when delivering his judgment.
The Respondent appealed against the Tribunal’s decision on a number of grounds. The EAT had to consider whether the Tribunal had interpreted the law too widely by finding that a man was more likely to be bald than a woman. The employer tried to argue that women could choose to be bald or might be bald because of a medical condition and that in order to be related to sex it would have to apply to that sex to the exclusion of the other. Baldness, they contended, is not related to sex as both men and women can be bald.
The EAT did not consider that this was the correct analysis and that the proper analysis is to approach the matter purposively. They held that the employer’s submission that in order for unwanted conduct to relate to sex, it must relate to a matter which is both inherent in the gender in question and in no-one of the opposite gender was not rooted in authority and ran contrary to the purpose of section 26 of the Equality Act. The object of the Equality Act is to proscribe harassment in the workplace. Mr King made the remark with a view to hurting the claimant by commenting on his appearance which is often found amongst men. The Appeal Judge referred to an earlier judgment in Bakkali v Greater Manchester Buses 2018 [ICR 1481] in which it was held that the words, “related to” a protected characteristic in the Equality Act (as opposed to on the grounds of eg race in the RRA) includes a wider category of conduct and that a decision on whether conduct is related to such a characteristic requires a broader enquiry.
The case serves as a reminder to employers about the risks of so called workplace banter. Even in workplaces where coarse language is not uncommon, remarks about aspects of a person’s appearance that may relate to a protected characteristic will be particularly risky. It is recommended that employers update their written policies to take this into account with a view to protecting the business against claims.
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