Here is a case which is a very useful reminder to employers that staff who say inappropriate things can land them in some very hot water!
Apologies for the fruity language, but an employee who was called a “bald c**t” by his colleague has succeeded in a sex-related harassment claim.
In the case of Finn v British Bung Manufacturing Company, the Claimant worked for the Respondent in a predominantly male manufacturing environment, where “industrial language” was commonplace. Following an altercation with a colleague about a piece of machinery, his colleague called him a “bald c**t” and threatened him with physical violence. The Claimant was later dismissed. Alongside an unfair dismissal claim, he brought a claim of sex-related harassment in relation to his colleague’s comment which referenced baldness.
The Employment Tribunal found, in relation to the harassment claim, that the Claimant’s colleague had crossed the line by making remarks personal to the Claimant about his appearance. The conduct was unwanted. The words were uttered with the purpose of violating the Claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him. The tribunal upheld the Claimant’s sex-related harassment claim, holding that baldness is a predominantly male issue. The comment related to the Claimant’s sex as it focused on an aspect of his appearance (baldness), which is often found amongst men.
The Respondent not surprisingly appealed. In relation to the harassment claim, the Respondent argued that, in order to be related to sex, the harassment would have to apply to that sex to the exclusion of the other. As both men and women could suffer from baldness, the Respondent argued that the tribunal’s decision on sex-related harassment could not stand.
Dismissing the appeal in relation to the harassment claim, the Employment Appeal Tribunal held that there was no authority for the proposition 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.
This case amply demonstrates why it is so important for employers to have a written equal opportunities policy in place and, just as importantly, to train staff on what it actually means.
Do also keep a look out for another bulletin from us by the weekend as we are expecting the government’s new Employment Rights Bill to be published tomorrow (it will be all over the TV and media outlets too) because it represents a seismic change to what employers have got used to in recent years. Amongst other things, it is widely expected that “short server” dismissals are going to become a thing of the past, though quite how the already overloaded tribunal system will cope with a likely surge in claims is anyone’s guess.