Can comments regarding physical characteristics principally related to one gender amount to sex related harassment?

This was considered in the case of Finn v British Bung Manufacturing Company.

The facts

Mr Finn, an employee of British Bung Manufacturing Ltd (the Respondent), alleged that he was subject to sexual harassment in the workplace after his manager called him “bald c*nt” and threatened him with physical violence. The Respondent gave Mr Finn’s manager, Mr King a warning regarding his conduct. Despite the warning, Mr King threatened Mr Finn again, and Mr Finn told the Respondent that he had had enough of Mr King’s behaviour and that, if they did not fire him, “that would be it”. Mr Finn was subsequently summarily dismissed for gross misconduct in relation to another matter. He brought claims in the employment tribunal for harassment related to sex, unfair dismissal and wrongful dismissal. This article deals with the sexual harassment claim.

The Legal Bit

Section 26 (1) of the Equality Act 2010 provides that

Sex harassment occurs where:

The following must be taken into account when considering whether there has been sexual harassment:

• B’s perception.
• The other circumstances of the case.
• Whether it is reasonable for the conduct to have that effect.

The employment tribunal decision

The employment tribunal held that Mr King’s conduct towards Mr Finn, namely the comment about Mr Finn’s baldness, amounted to harassment related to sex. It was unwanted, since it was unwelcome and uninvited, and Mr King admitted that his intention was to threaten Mr Finn and insult him. The comments were therefore made with the purpose of violating Mr Finn’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

The tribunal considered that the insult related to Mr Finn’s physical appearance, which could be linked to his sex and this constituted harassment related to his sex.

The employment appeal tribunal decision (the EAT)

The Respondent appealed to the EAT. The EAT dismissed the appeal and agreed with the ET that the comment about baldness was related to Mr Finn’s sex because it targeted a characteristic predominantly associated with men. The ruling emphasised that the comment does not have to be of a sexual nature to be linked to sex. It confirmed that offensive comments that exploit characteristics more common on one sex can be deemed to be harassment under the Equality Act.

The EAT went on to state that the employment tribunal had correctly considered that the context of a remark said to constitute harassment under section 26(1) of the EqA 2010 included both:

• The prevalence of the feature to which the remark alluded to those with the relevant protected characteristic.
• The absence of any other factor or circumstances said to explain the remark.

The comments had been made by a colleague who admitted that he had intended to threaten and insult Mr Finn. The employment tribunal was therefore entitled to find that the words used had the purpose of violating Mr Finn’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him and this related to his sex.

Comment

The case highlights that harassment based on personal attributes associated with a particular sex can still be covered under the Equality Act.

Remember the new preventative duty to prevent sexual harassment was introduced on 26 October 2024, This case is a timely reminder to employers to be mindful of the new legal duty to create an environment that is safe and free from sexual harassment.