You can read our previous article on the case when it was heard in the Employment Tribunal here.
Facts
The Claimant was an electrician at the British Bung Manufacturing Company ("the Respondent"). He worked in a predominantly male environment where "industrial language" was commonplace.
On 31 July 2019, a colleague named Mr King called the Claimant a "bald c*nt" following a disagreement and threatened him with physical violence, resulting in Mr King receiving a warning regarding his conduct. Despite the warning, Mr King threatened the Claimant again. The Claimant was dismissed for gross misconduct relating to a separate matter. The Claimant went on to bring claims for unfair and wrongful dismissal and harassment related to sex in relation to Mr King's comments.
Harassment related to sex – the Legal Test
To bring a successful claim for harassment under Section 26(1) of the Equality Act 2010, there has to be:
- unwanted conduct;
- relating to a protected characteristic (age, disability, gender reassignment, race, religion or belief, sex and sexual orientation);
- which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.
The Employment Tribunal
The Employment Tribunal held that Mr King's conduct, particularly the comment regarding the Claimant's baldness, amounted to harassment related to sex: it was unwanted and had the purpose of violating the Claimant's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, as Mr King admitted that he intended to threaten and insult the Claimant.
The Employment Tribunal determined that baldness is a physical characteristic that is much more common in men, thus the comment was inherently related to the Claimant's sex and ultimately constituted harassment related to his sex.
The EAT
The Respondent appealed to the EAT, arguing that in order to be related to sex, the harassment must apply exclusively to one sex and that the derogatory "bald" comment was not related to the Claimant's sex as both men and women can be bald.
The EAT dismissed the appeal and upheld the original Employment Tribunal's finding of harassment related to sex. The EAT found that the Respondent's argument was not supported by any authority and was contrary to the purpose of section 26 of the Equality Act 2010. As "baldness" was clearly something that affected men more than women, the comment was capable of being harassment related to sex.
Comment
This case in particular highlights that harassment can still take place where offensive language is considered "commonplace", and harassment related to sex can still take place even in a predominantly single-gendered environment. Employers need to be alive to the fact that comments that relate to a person's characteristics, in this case appearance, can cross the line if they relate to something more prevalent in one protected characteristic than another. Comments also do not need to be of a sexual nature to constitute harassment related to sex.
This case serves as a reminder that employers need strict, zero-tolerance policies in respect of anti-bullying and harassment. Employers need to look inwardly at their cultures in order to ensure that employees know how and feel confident to report bullying, harassment and discrimination. Such allegations need to be investigated thoroughly and effectively, as ultimately "bullying" and "harassment" has now become something much wider in scope, and the excuse of "workplace banter" is simply not good enough.
Harassment is certainly in the spotlight with the new duty to take reasonable steps to prevent sexual harassment of employees coming into force on 26 October 2024, requiring employers to be proactive in identifying the risks of such harassment taking place and taking steps to mitigate the risks. We discuss the duty here. It is important to note that the new duty is anticipatory in nature and so taking steps to prevent sexual harassment should be a priority.
Authored by Anna McCarthy
