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Advice For Employers & HR Professionals

Sexual harassment – a guide for employers of the follicularly challenged

The topic of sexual harassment has received a fair amount of press attention recently following the Employment Tribunal case bought by Mr Finn against his employer, The British Bung Manufacturing Company Limited.

What happened?

The Tribunal decided that Mr Finn had been unlawfully harassed after he was called a “bald [add unrepeatable expletive here]” by the factory supervisor.  The Tribunal accepted that “industrial language” was commonplace in the factory – it is always quite amusing to read Tribunal judgments which try to deal with such terms in an elegant, yet factually clear, way!

The press picked up on the case with the suggestion that it was a bit far-fetched to have concluded that this was unlawful harassment related to Mr Finn’s sex.

In fact, Mr Finn’s claim highlighted a distinction within the sections of the Equality Act which deal with unlawful harassment.  Those sections make clear that individuals are protected against both harassment of a sexual nature (which is perhaps the more usual sexual harassment scenario we think about) and against harassment which is “related to” a protected characteristic.

The Tribunal concluded that the supervisor’s comments about Mr Finn’s baldness were “unwanted conduct” because they were personal remarks about his appearance and that there was a link between the use of the word “bald” and Mr Finn’s protected characteristic of his sex.  As you might imagine, the employer argued that it was nothing to do with sex because women could also be bald, but the Tribunal didn’t accept that view on the basis that baldness is so much more common in men than it is in women and so is inherently related to sex.  In reaching this conclusion the Tribunal referred to an earlier case (Insitu v Heads) in which the EAT had held that a comment about the size of a woman’s breasts was harassment of a sexual nature.  In my view, that has to be the right conclusion to have drawn.

The Tribunal will consider what compensation Mr Finn is awarded at a later date.  I’m sure that there will be more press interest at that stage.

Why is this important?

It’s a useful reminder for employers that individuals can bring claims of harassment ‘relating to’ their sex, not just where the harassment has a sexual tone.  Employers should keep an open mind about the basis for any harassment and to consider carefully whether it could be said to be related to any one of the characteristics which are protected under the Equality Act.

What should employers do?

Employers must address harassment in the workplace and create a culture in which this is not acceptable.  This will including having appropriate policies in place, but also about providing training to staff, setting out expectations about behaviours and picking up on instances where an employee strays into unacceptable territory.  Relying on the excuse that “industrial language” or “banter” occurs frequently in the workplace tends to have little sympathy with Employment Tribunals, particularly in cases like this where a link to a protected characteristic can be found.  In the midst of the current recruitment crisis, the reputational damage from these types of claims cannot be underestimated.

Get in touch with the Torque Law team if you need advice on how best to protect your organisation through the creation of an inclusive culture.

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