The employment landscape is evolving, and with the introduction of the Worker Protection (Amendment of Equality Act 2010) Act’s preventative duty on sexual harassment, understanding the distinctions between different forms of workplace harassment has never been more important. A recent Employment Tribunal case provides some insight into the difference between Sexual Harassment and Harassment Related to Sex.
The Facts
The case of Finn v British Bung Manufacturing Company Ltd (the respondent) presents an understanding of how tribunals approach harassment related to sex. Mr. Finn worked at a manufacturing company where he faced derogatory comments about his baldness from his manager, Mr. King, including being called a “bald c*nt” alongside threats of physical violence. Despite Mr. King receiving a warning for this conduct, the situation remained tense. Following a subsequent threat, Mr. Finn expressed that he had reached his limit with Mr. King’s behaviour, stating that if the company didn’t terminate Mr. King’s employment, “that would be it.” Mr. Finn was later dismissed for gross misconduct related to a separate matter, leading him to bring claims including harassment related to sex regarding the comments about his baldness.
The Legal Framework
The foundation for understanding workplace harassment lies in Section 26(1) of the Equality Act 2010. Under this legislation, harassment related to sex occurs when someone engages in unwanted conduct related to sex that either violates another person’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment for them. The law requires careful consideration of the recipient’s perception, the broader circumstances of the case, and whether it is reasonable for the conduct to have the claimed effect.
The Employment Tribunal’s Analysis
In a significant decision, the Employment Tribunal determined that the comments about Mr. Finn’s baldness constituted harassment related to sex. The tribunal’s reasoning hinged on several key factors. First, they established that the conduct was unwanted, being both unwelcome and uninvited. Importantly, Mr. King had admitted his intention was to threaten and insult Mr. Finn, demonstrating a clear purpose to violate Mr. Finn’s dignity and create an intimidating environment. The tribunal drew a critical connection between the insults targeting physical appearance and Mr. Finn’s sex, establishing the necessary link for harassment related to sex.
The Employment Appeal Tribunal’s Confirmation
The case’s significance grew when the Employment Appeal Tribunal (EAT) upheld the original decision. The EAT’s ruling emphasised that comments about baldness were inherently related to sex because they targeted a characteristic predominantly associated with men. This decision established two vital principles: first, that conduct doesn’t need to be sexual in nature to be linked to sex, and second, that offensive comments exploiting characteristics more common to one sex can constitute harassment under the Equality Act.
The EAT provided valuable guidance on contextual considerations, emphasising the importance of examining both the prevalence of the characteristic among those of the relevant sex and the absence of other factors that might explain the conduct. This nuanced approach helps employers and tribunals navigate the sometimes subtle distinctions between different forms of harassment.
Practical Implications and Application
Understanding these distinctions has become even more important with the introduction of the specific duty to prevent sexual harassment. While sexual harassment involves unwanted conduct of a sexual nature – such as inappropriate touching or explicit comments – harassment related to sex includes a broader range of conduct connected to gender but not sexual in nature. The Finn case perfectly illustrates this distinction, showing how comments about physical characteristics predominantly affecting one sex can constitute harassment, even without any sexual element.
Moving Forward: Creating Safer Workplaces
This case is well timed, as employers adjust to the new preventative duty on sexual harassment which took effect from 26th October 2024. While this duty specifically relates to sexual harassment, the Finn case reminds us that all forms of harassment require vigilant attention and prevention. Employers must develop comprehensive approaches that address both sexual harassment and harassment related to sex, supported by clear policies, thorough training, and robust investigation procedures.
The key to effective harassment prevention lies in understanding these nuances while maintaining a commitment to creating respectful work environments. Whether developing prevention strategies or handling specific complaints, employers benefit from professional expertise in navigating these complex issues. The goal remains constant: fostering workplaces where all employees feel safe, respected, and protected from all forms of harassment.
Contact me by email at ayesha@ayeshawilson.co.uk for support with workplace harassment investigations or to discuss how these legal developments affect your organisation.
