In the case of British Bung Manufacturing Company Ltd and another v Finn [2023] EAT 165, Mr Finn worked as an electrician. In July 2019, a colleague, Mr King, called Mr Finn a “bald c*nt” and threatened him with physical violence. His employer gave Mr King a warning regarding his conduct. On 26 March 2021, Mr King threatened Mr Finn again, and as a result Mr Finn told his employer’s s managing director and company secretary that he had had enough of Mr King’s behaviour and that, if they did not fire him, “that would be it”. He then left the workplace.
Mr Finn was subsequently summarily dismissed for gross misconduct in relation to another matter. He brought claims in the employment tribunal, including for harassment related to sex.
Section 26(1), Equality Act 2010 states that sex harassment occurs where A engages in unwanted conduct related to sex. The conduct must also have the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
In applying his test, the employment tribunal held that Mr King’s conduct towards Mr Finn in July 2019 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 also clearly made with the purpose of violating Mr Finn’s dignity and ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’ for him.
The most pertinent element of the judgement was that the tribunal considered that there was a connection between the word “bald” and the protected characteristic of sex. The fact that something could potentially apply to both sexes did not mean that it could not be inherently related to sex. Although baldness affected both men and women, it was more prevalent in men.
Interestingly, the tribunal held that the comment was not harassment related to age, which had also been claimed, since baldness affects men of all ages and was therefore not a characteristic of age.
The employer appealed to the EAT. It argued that in order to be related to sex, baldness would have to apply to one sex to the exclusion of the other. However, the EAT dismissed the appeal. It recognised the fact that the characteristic by reference to which Mr King had chosen to abuse Mr Finn was more prevalent in those sharing Mr Finn’s sex and more likely to be directed towards them. Therefore, it was inherently related to sex.
