Yes, said the Employment Appeal Tribunal (EAT). The EAT has upheld a first instance tribunal decision that a male worker who was called a ‘bald c**t’ was harassed for a reason related to sex.
This was considered in Finn v British Bung manufacturing Company Limited and King. Mr Finn was an electrician. During an altercation on the factory floor with another colleague he was called a bald c**t. He was later sacked for an unrelated incident which was alleged to amount to gross misconduct. The EAT also supported the tribunal’s decision that Mr Finn’s dismissal was unfair.
This blog though is about the act of harassment. Under section 27 of the Equality Act 2010, harassment is unwanted behaviour that you find offensive, where the other person’s behaviour is because:
- you have a protected characteristic, i.e., sex, race, disability, age, sexual orientation, gender reassignment, marriage and civil partnership, pregnancy and maternity, religion or belief; and
- the harassment is related to a protected characteristic (for example, you are treated as though you have a particular characteristic, even if the other person knows this isn’t true).
Anything that is unwelcome to you is unwanted. You don’t need to have previously objected to it. The unwanted behaviour must have the purpose or effect of violating your dignity, or creating a degrading, humiliating, hostile, intimidating or offensive environment for you.
Mr Finn argued that the comment made to him was unwanted, violated his dignity and was related to his sex. The company’s barrister argued that because baldness is not an exclusively male characteristic, the related to test was not met, i.e., being bald was not unique to men, women could also be bald.
The tribunal disagreed and held that being bald is more prevalent in men and determined that the harassment was related to Mr Finn’s sex. The tribunal referred to the ‘Hiya, big tits’ comment made to a female claimant in In Situ Cleaning Co Limited v Heads [1995], which was held to be sex-related harassment. They reasoned that the fact a man with enlarged male breasts (gynecomastia) could also have been the victim of such a comment did not mean the female claimant’s case failed.
At appeal the company argued that a comment can only meet the related to test if the nature of the comment was such that it could only apply to those with the protected characteristic in question. The EAT disagreed and found that that the tribunal had permissibly “recognis[ed] the fact that the characteristic by reference to which [the harasser] had chosen to abuse the Claimant was more prevalent in people of the Claimant’s gender, more likely to be directed at such people, and, as such, inherently related to sex.”
Ultimately, I believe it was the context of the comment that had an effect in the claimant being able to establish that it was related to his sex. As is often the case, each case will turn on its own specific facts and should be treated with caution.
This blog was written by Anita Vadgama, Partner at didlaw.
