Harassment: The use of “industrial language” in the workplace and the potential for a harassment claim

The Employment Appeal Tribunal (EAT) in Finn v British Bung Manufacturing Co Ltd clarified the interpretation of sex-related harassment under the Equality Act 2010. The EAT confirmed that comments need not be exclusively applicable to one gender to be deemed “sex-related”. A remark may qualify as harassment if it relates to an individual’s sex and creates a hostile work environment, regardless of whether it could also apply to individuals of a different gender.

In this article, we will explore the case in more detail and provide employers with guidance as to what steps they can take to help prevent harassment in the workplace.

The facts

Mr Finn (the Claimant) had been employed by British Bung Manufacturing Company (the Respondent) as an electrician since 1997.  The Respondent’s workforce was predominantly male.  In July 2019, during the course of his duties, the Claimant got into a disagreement with his colleague, Mr King, over a piece of machinery.  Mr King made violent threats towards the Claimant and called him a “bald c***”.

In 2021, the Claimant was involved in another argument with a colleague, during which Mr King intervened and made additional violent threats toward the Claimant.  Shortly after, the Claimant was suspended for presenting the Respondent with a witness statement on West Yorkshire Police headed notepaper, giving the false appearance of matters having become a police matter.   The Claimant was subsequently summarily dismissed on the grounds of gross misconduct.

The Claimant brought a series of claims to the Employment Tribunal (tribunal) which included a claim for sex related harassment for use of the word “bald”.  The harassment claim was filed 18 months out of time, but the tribunal found it just and equitable to extend time due to the claim being meritorious and in the public interest. The tribunal did not believe the Respondent would suffer ‘forensic prejudice’ due to the extension of time.

The tribunal found in favour of Mr Finn regarding the harassment claim, noting that while “industrial language” was commonplace within the Respondent’s workplace, the use of the term “bald” crossed the line and constituted unwanted conduct related to sex. In rejecting the Respondent’s arguments, the tribunal explained that whilst both men and women can be bald, baldness is much more prevalent in men than women and the word is therefore inherently related to sex.

The Respondent appealed to the EAT asserting that the tribunal had erred in finding that the word “bald” was related to sex. Their counsel argued that in order to be related to sex, the comment would have to apply to that sex to the exclusion of the other. The EAT disagreed and stated that the Respondent’s argument was not rooted in authority and ran contrary to the purpose of section 26 of the Equality Act 2010. The appeal was dismissed.

What does this mean for employers?

Employers must be alive to the fact that those employees engaging in what appears to be “workplace banter” can inadvertently give rise to a claim for sex related harassment when comments about physical appearance are made.  This can still be the case even where the workforce is predominantly the same gender.

What steps can employers take in light of this judgement?

• Review and Update Anti-Harassment Policies: Ensure that policies explicitly state that sex-related harassment includes comments or behaviours that relate to an employee’s gender and create a hostile work environment
• Conduct Training: Implement regular training sessions to educate employees about the types of behaviour that can constitute harassment, including comments about physical appearance which relate predominantly to one gender
• Establish Clear Reporting Procedures: Create and communicate robust mechanisms for employees to report instances of harassment without fear of retaliation and ensure those dealing with the complaints are suitably trained
• Promote a Culture of Respect: Employers should clearly communicate what constitutes acceptable language in the workplace.

If you require any assistance in drafting these policies, or require legal assistance through an allegation of bullying, harassment or discrimination that has been made against you or your company, please do not hesitate to contact the Employment team at Thomson Snell & Passmore.

You can keep up to date with key employment law changes by signing up to our Work Place Law monthly newsletter here.