In some workplaces, employees may be subjected to harsh or unkind comments from colleagues. While these statements might be intended as “just banter,” certain comments can cross the line into harassment, especially if they relate to a protected characteristic. One of the key issues that arose in the case of 1) British Bung Manufacturing Ltd 2) Mr J King v Mr A Finn [2023] EAT 165 was whether a comment about someone’s appearance, specifically calling a man “bald,” could be considered sex-based harassment. This case was heard in the English Employment Tribunal and therefore the Equality Act 2010 was the relevant piece of legislation, however similar protection is afforded in Northern Ireland. The matter was appealed by the employer to the Employment Appeals Tribunal (an Appellant court which NI does not have), and the employer was again unsuccessful at this stage.
The Facts
Mr Finn worked at a small company where many of his colleagues were male, and the language on the shop floor was often informal and rough. However, things took a turn when his colleague, Mr King, threatened him and called him a “bald c**t.” This comment was reported, and Mr King received a warning. Despite this, the situation escalated further after another disagreement, leading Mr Finn to tell management that if Mr King wasn’t dismissed, he would leave.
Mr Finn later took some time off work, and when he returned, he presented a witness statement at work, that had been typed on police stationery. His son, who worked as a police officer, had provided him with this stationery. However, it was later discovered that no police report or investigation had been carried out. As a result, the company initiated disciplinary proceedings against Mr Finn on the grounds that he had misrepresented that the matter had become criminal. Mr Finn was subsequently dismissed.
Mr Finn then brought claims for unfair dismissal and harassment related to sex.
Was It Sex-Based Harassment?
The tribunal found that Mr Finn’s dismissal was procedurally unfair and further, that he had been subjected to harassment on the grounds of his sex. It is the discrimination aspect which is noteworthy in this case.
The tribunal ruled that when Mr King called Mr Finn a “bald c**t,” it amounted to harassment related to his sex. The comment was deemed unwanted, as it was unwelcome and intended to insult and threaten Mr Finn. This behaviour created an intimidating, hostile, and offensive environment, which is a key feature of harassment under the Equality Act.
A central issue in this case was whether the term “bald” could be linked to sex-based harassment. The tribunal concluded that baldness is more common in men than women, so using the term in this context could indeed be seen as harassment related to sex. The Employment Appeal Tribunal rejected the argument by the employer that the comment could not be related to sex simply because women could also be bald. The focus was on whether the comment related to a characteristic that is more prevalent in one sex, and in this case, it was clear that baldness was more commonly associated with men.
Key Takeaways
This case highlights an important point: comments about a person’s appearance, can give rise to harassment claims if the comment relates to a feature that is more common in one sex or another protected characteristic. In this case, the term “bald” was seen as linked to gender because it was more often associated with men than women. It is important for employers to ensure they have anti-harassment and equality policies in place, together with training their workforce on such policies, and providing refresher training periodically.
If you ever find yourself in a situation in the workplace where comments about your appearance, or anything else related to a protected characteristic, are making you feel uncomfortable, intimidated, or humiliated, it’s important to know that the law may offer you protection. Harassment in any form should be taken seriously, and you have the right to work in an environment where you are treated with dignity and respect.
For any further information, advice and guidance on the practical steps to be taken, please contact our office on 028 90 321 863, or email: nmcmullan@edwardssolicitors.com