In the recent case of Finn v The British Bung Manufacturing Company Ltd and another an employment tribunal found that referring to a male colleague as 'bald' in an expletive-laden exchange was harassment based on the protected characteristic of sex.
What is harassment?
Harassment is prohibited under the Equality Act 2010, in terms of which it is unlawful to:
- engage in unwanted conduct related to a relevant protected characteristic (including sex),
- which has the purpose or effect of violating another person's dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for them.
So, there must be unwanted conduct and it must have the relevant purpose or effect.
The claimant was an electrician who worked for British Bung and was subjected to the comment during an argument with his supervisor at the time. The claimant raised a complaint of harassment (amongst others).
The tribunal accepted that "industrial language was commonplace" and that there was "no evidence the claimant complained about it other than the epithets "old" and "bald"". The tribunal had to determine whether or not the insults constituted harassment.
Was the conduct unwanted? Did it have the relevant purpose or effect?
Whether conduct is unwanted or not must be viewed subjectively from the employee's point of view and the tribunal noted that a one-off incident could amount to harassment. They observed that the claimant's supervisor crossed the line by "making remarks personal to the claimant about his appearance. The conduct was therefore unwanted."
It was found that the supervisor's intention – on his own evidence – was to threaten the claimant and so the tribunal had no difficulty in concluding that the purpose of the conduct was to create an intimidating, hostile, degrading, humiliating or offensive environment for him. The tribunal also concluded that, even if that had not been the supervisor's purpose, the claimant considered his supervisor's words to have had that effect.
Was there a connection between using the word 'bald' and the claimant's sex?
The tribunal had to decide whether or not there was a connection between the use of the word 'bald' on the one hand and the claimant's sex as a male on the other. The tribunal stated that "all three members of the tribunal will vouchsafe, baldness is much more prevalent in men than women" and that they therefore found the comment to be inherently related to sex observing that it was "much more likely that a person on the receiving end of a remark such as that made by [the supervisor] would be male".
The claimant's complaint of sex-related harassment therefore succeeded.
This case does not raise any new points of law but is a useful reminder that unwanted conduct which could be linked to a protected characteristic can readily constitute unlawful harassment. There can be sex related harassment even where, as was the case here, it arises from male-to-male conduct.
Employers will want to ensure that they have in place policies and training on preventing workplace bullying and harassment and that these are regularly updated and refreshed. Doing so will make it less likely that they will be vicariously liable for any acts of discrimination or harassment found to have been carried out by their employees. Read more on the 'reasonable steps defence' in our earlier blog.
For help with designing and implementing comprehensive equality and diversity policies and training, get in touch with our employment and immigration team. Workbox by Brodies, our online HR and employment law site, also has practical guidance on promoting equal opportunities and managing diversity and discrimination risk, including template policies and training materials.