That was the very issue the tribunal had to determine in Finn v British Bung Manufacturing Company Limited & ors. The decision has attracted widespread national press interest.
Background and law
Mr Finn was employed as an electrician in a small Yorkshire family business, which had a predominantly male workforce. During an argument with a colleague, he was called ‘bald’, followed by an expletive and threatened with violence. He was dismissed almost two years later, following another altercation with the same colleague and brought a number of claims, including an allegation that the comment amounted to harassment related to his sex.
The Equality Act 2010 protects employees from harassment at work. The conduct complained of must be unwanted, related to a protected characteristic (such as race, religion, sex etc) and must have the purpose or effect of violating the victim’s dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim.
Tribunals will look at both the purpose (what the perpetrator intended) and the effect (how the victim felt – taking into account their perception, other circumstances of the case and whether it is reasonable for the conduct to have that effect). Generally, you take your victim as you find them and it is not a defence to say that the comments were “banter” or that the victim is too sensitive or that the comments were not directed at them.
Harassment related to someone’s sex is not the same as sexual harassment which is unwanted behaviour of a sexual nature.
The tribunal accepted that Mr Finn’s colleague had used the words bald followed by an expletive to humiliate him. It acknowledged that industrial language was “commonplace on this West Yorkshire factory floor” and that Mr Finn also used swear words. But here, the words used had “crossed the line” by referring to Mr Finn’s personal appearance and was “strong language”.
The tribunal had no difficulty in finding that the words were unwanted and their purpose had been to violate Mr Finn’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him. It also accepted that a serious one-off incident can amount to harassment. The trickier question was whether the words used established a link between the harassment and Mr Finn’s sex as a male.
The tribunal decided that it is much more likely that a person on the receiving end of such a comment would be male than female because, even though women can suffer from baldness, it is much more prevalent in men. Therefore, the words did amount to harassment related to sex and Mr Finn succeeded in his claim. He will receive compensation for the injury to his feelings, which is likely to be at the lower end of the Vento scale (between £900 and £9,100)
You may be wondering how Mr Finn was able to bring this claim given that he was almost 18 months out of time. Discrimination claims have to be issued within three months of the incident (although the requirement to go through Acas early conciliation extends this by up to six weeks). Therefore, to bring this claim, Mr Finn had to convince the tribunal that it was just and equitable to extend this time limit. The tribunal agreed to do this on the basis that it is in the public interest that harassment is outlawed in the workplace and that wrongdoers are held to account. It was also influenced by the fact that extending time did not prejudice the company: it had taken contemporaneous witness statements from Mr Finn and the colleague and both were able to recall the incident and give evidence before the tribunal.
Lessons for employers
Making jokes about someone else’s appearance can amount to harassment. In this case it was about sex, but it could also apply to derogatory comments about someone’s age, religious beliefs, racial origins, disability, sexuality or gender reassignment.
Although this decision isn’t binding on any other tribunal, it does demonstrate that male colleagues – including those working in male-dominated factory settings where “industrial language” is common – can be victims of harassment on the grounds of their sex.
We recommend that employers make it clear to staff what type of language is and isn’t acceptable in the workplace. You should have in place clear policies, provide regular training, and take prompt and appropriate action against anyone who oversteps the mark. Even on shop floors or other environments where swearing and coarse language may be more common place, there are boundaries and it is important that staff know where these lie. This will help employers to defend claims and ensure a positive workplace culture.
The other issue to consider is that tribunals can allow claimants to bring claims out of time. Whilst it is rare for tribunals to permit claims that are brought out of time to proceed, they do have wide discretion with discrimination claims where the tribunal considers it ‘just and equitable’ do allow the claim to proceed despite being out of time. You may, therefore, need to be wary of immediately dismissing grievance complaints relating to historic discrimination on the basis that they are out of the usual three-month time limit – particularly if you’ve already got contemporaneous evidence available. We recommend that you take advice in relation to any potential discrimination claim as the law in this area is complex.
Easy steps to help your organisation establish the statutory defence
Ensuring regular updated equality and diversity training takes place in the workplace will help put employers on the front foot and potentially prevent costly discrimination claims. We provide in-house and online training on a range of subject matters, including Discrimination, Equality and Diversity, Bullying, Harassment and Sexual Harassment and Investigations, Disciplinary and Grievance procedures.
For further information regarding the training we offer or for a no obligation health check of your current policies and procedures, please contact Sarah Collier, Head of Employment Law on 01204 527777 or firstname.lastname@example.org.