In the case of Finn v British Bung Manufacturing Company, the Employment Appeal Tribunal has provided some important legal clarification that will have implications for employers when it comes to what can be considered sex related harassment in the workplace.
Background
Mr Finn was a longstanding employee of British Bung Manufacturing, which was described as a small family run business of around 30 employees who were predominantly (if not exclusively) male. "Industrial language" was said to be commonplace on the shop floor, and following a disagreement about a piece of machinery, Mr Finn was called 'bald' in an incredibly derogatory way, and was threatened with physical violence. He was later dismissed for gross misconduct, despite an unblemished disciplinary record.
My Finn brought several claims against British Bung Manufacturing, including a claim for sex related harassment arising out of the comment made about his appearance.
Employment Tribunal's decision
In relation to the sex related harassment claim, Mr Finn argued that the comment about him being bald was unwanted, it related to his sex, and it was said with the purpose of violating his dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
British Bung Manufacturing denied the claim, arguing that the comments were workplace banter and not intended to cause harm. They also argued that baldness, whilst common in men, is not inherently linked to gender in a way that would qualify it as harassment on the grounds of sex.
The Employment Tribunal ultimately found in Mr Finn's favour and upheld his harassment claim. The Tribunal determined that baldness is a physical characteristic much more common in men, and the comment made to Mr Finn was therefore inherently related to his sex.
The Tribunal also ruled that such behaviour, even if it could be passed off as 'workplace banter', can cross the line into harassment if it involves gender specific characteristics whilst causing emotional distress.
Employment Appeal Tribunal
British Bung Manufacturing appealed the Tribunal's decision arguing that for something to be related to sex, the harassment must apply exclusively to one sex. Specifically, they argued that the comment to Mr Finn was unrelated to his sex because baldness is not exclusive to any one sex, as both men and women can be bald.
The Employment Appeal Tribunal dismissed the appeal and upheld the finding of sex related harassment. They found that there was no legal basis for the argument that, for unwanted conduct to relate to sex, it must involve a characteristic that is inherent or exclusive to one gender and not present in the opposite gender. As baldness was clearly something which affects men more than women, the comment was capable of being harassment on the grounds of sex.
Comment
This case is a useful reminder to employers that the scope of what can constitute sex related harassment in the workplace can be wider than you might ordinarily think. Comments that relate to characteristics more prevalent in one sex than the other, can cross the line into harassment if they cause emotional distress.
This case is also another example of how difficult it can be for employers to defend a harassment claim on the basis that the conduct was just 'workplace banter' . Whilst there are cases where the 'workplace banter' defence has been successful, they are very much in the minority. Employers are reminded of the importance of regular staff training and robust internal policies relating to harassment and discrimination.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
