In this case the Employment Appeal Tribunal (EAT) held that an employee who had been referred to by a colleague as a "bald [expletive]" had been subjected to harassment relating to sex under section 26(1) of the Equality Act 2010 (EqA). Baldness was more prevalent in men, and the fact that women could also suffer from baldness did not mean that it could not be inherently related to sex.
Background
Under section 26(1) EqA, harassment related to sex occurs where a person, A, engages in unwanted conduct related to sex, and that conduct has the purpose or effect of violating the dignity of another person, B, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Facts
Mr Finn worked for the British Bung Manufacturing Company Ltd (BBM) as an electrician from September 1997 until his dismissal in May 2021. BBM is a small family business with around 30, mostly male, employees. The use of "industrial language" was common on the shop floor.
On 24 July 2019, Mr Finn had an altercation with a colleague, Mr King, in which Mr King called Mr Finn a "bald [expletive]" and threatened him with physical violence. Mr King admitted to his conduct and was given a warning. No further issues arose between Mr Finn and Mr King for the next 20 months.
On 26 March 2021, there was a disagreement between Mr Finn and Mr King, during which Mr King again threatened Mr Finn. Mr Finn then left the workplace, having told the Managing Director and Company Secretary of BBM that he had had enough of Mr King's behaviour and that, if they did not fire Mr King, "that would be it".
In May 2021, BBM summarily dismissed Mr Finn for gross misconduct regarding a separate matter. Mr Finn brought claims for unfair dismissal, wrongful dismissal and harassment relating to sex. Here, we consider the harassment claim only.
The employment tribunal upheld Mr Finn's claim that the incident on 24 July 2019 amounted to harassment relating to sex. The tribunal noted that the conduct was unwanted and that Mr King had admitted his intention was to threaten and insult Mr Finn. It therefore found that Mr King's purpose in saying the words "bald [expletive]" was, effectively, to violate Mr Finn's dignity and create an intimidating, hostile, etc. environment for him. In the tribunal's view, there was a connection between the word "bald" and the protected characteristic of sex. Since baldness was much more prevalent in men than in women, the remark was inherently related to sex. (By contrast, the tribunal did not consider baldness to be related to the protected characteristic of age, since baldness affects men of all ages.) BBM appealed to the EAT.
The EAT dismissed the appeal. It rejected BBM's argument that in order for unwanted conduct to relate to sex, it must relate to a matter which is both inherent in the sex in question and in no-one of the opposite sex. In the EAT's view, such an argument was not supported by existing case law and ran contrary to the purpose of the legislation. The tribunal had correctly recognised that the characteristic by reference to which Mr King had insulted Mr Finn – baldness – was more prevalent in men. Such abuse was therefore more likely to be directed at men and was thus inherently related to sex.
What this means for employers
This 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. For example, comments about baldness (as in this case), or breast size (as in an earlier case that the EAT referred to in its judgment) are likely to be considered inherently related to sex, since such features are much more prevalent in people of a particular sex.
Employers should take steps to ensure a working culture in which discrimination and harassment of any kind are not tolerated. This will include providing training to all staff on what is and is not appropriate in the workplace, implementing policies that set clear expectations as to appropriate behaviour, ensuring that all employees know how to raise concerns, and dealing properly and promptly with any incidents that do arise.
