Finn v British Bung Manufacturing Company [2023] EAT 165

Facts

The Respondent employed the Claimant in a manufacturing environment that was predominately male and where "industrial language" was a prevalent expression. In the aftermath of a disagreement with a coworker on a piece of machinery, the coworker referred to him as a "bald c**t" and threatened him with physical violence. It was later decided to dismiss the claimant. In addition to a claim for unfair dismissal and termination, he also filed a claim for sex-related harassment in response to a comment made by his coworker that made reference to baldness.

As part of the investigation into the allegations of harassment, the employment tribunal came to the conclusion that the colleague of the claimant had gone too far by making comments that were personal to the claimant regarding his appearance. The behaviour was not at all desired. In order to violate the dignity of the Claimant and to create an environment that was degrading, hostile, demeaning, humiliating, or offensive for him, the remarks were spoken with the intention of doing so. The argument that the claimant was subjected to sexual harassment was upheld by the tribunal, which stated that baldness is a problem that is primarily experienced by men. Because it concentrated on a characteristic of the Claimant's appearance (baldness), which is typically associated with men, the comment was related to the Claimant's sexual orientation.

The Respondent put forth an appeal. In connection to the claim of harassment, the Respondent contended that in order for the harassment to be tied to sex, it would have to apply to that sex exclusively, disregarding the other sex. The Respondent stated that the finding of the tribunal regarding sexual harassment could not be upheld because baldness is a condition that can affect both men and women.

Held

The Employment Appeal Tribunal came to the conclusion that there was no authority for the proposition. In order for unwanted conduct to relate to sex, it must relate to a matter that is both inherent in the gender in question and in no one of the opposite gender. As a result, the tribunal dismissed the appeal in relation to the harassment claim.

Comment

The claimant who experienced sexual harassment and was referred to as a "bald c**t" by his coworker was successful in his case.