The Employment Tribunal (ET) has found that an employee that was called “a bald ****” by a fellow male colleague was harassed based on his sex.
The Claimant presented a number of other claims against the Respondent, including unfair dismissal, wrongful dismissal, victimisation and health and safety detriments; however, this post focuses on the Claimant’s complaints of harassment related to age and sex. In order to bring a claim for harassment under the Equality Act 2010 there must be unwanted conduct, relating to a protected characteristic (including age and sex), which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.
The claim related to an altercation between the Claimant and his colleague, Mr King, in July 2019. The Claimant brought claims of harassment related to age and sex arising out of this July 2019 incident.
There were inconsistencies in the evidence given concerning the exact words used in the altercation. However, the Tribunal preferred the account given by Mr King and found, as a fact, that Mr King called the Claimant a “bald (followed by the expletive)”. The Claimant’s claim for age-related harassment failed as the Tribunal found that the Claimant had been called “bald”, without the addition of the word “old”. In addition, the ET accepted that baldness affects (predominately) adult males of all ages so is inherently not a characteristic of age.
The Claimant’s sex-related harassment claim however succeeded because the Tribunal found that there was a connection between the word “bald” on the one hand and the protected characteristic of sex on the other. The Tribunal said that although women as well as men may be bald, baldness is much more prevalent in men than women. Therefore, the Tribunal found it inherently related to sex. Further, although it was accepted between the parties that industrial language was commonplace at the Claimant’s place of work, Mr King’s comment about the Claimant’s appearance was unwanted and the Claimant did not complain about any other language that Mr King had used apart from this. The Tribunal found this to be a clear indication that this remark was unwanted conduct that had the purpose of violating the Claimant’s dignity and created an intimidating, hostile, degrading, humiliating or offensive environment for him.
What is also interesting to note is that the ET accepted the Claimant’s harassment claim relating to sex despite it being brought more than 18 months out of time. Notwithstanding it being significantly out of time and a stand-alone act of harassment that occurred on one day and was not part of a course of conduct, the ET found it just and equitable to extend time for the following reasons:
- The complaint was meritorious;
- Parliament has legislated to outlaw harassment in the workplace so it is in the public interest that such complaints are considered and adjudicated upon and that wrongdoers are held to account;
- There was no “forensic” prejudice to the Respondent by extending time. This was because the incident was between the Claimant and Mr King only, therefore, the delay did not prejudice the Respondent which may have led to a key witness disappearing or being unavailable;
- The Claimant was willing to let the incident go at the time and only brought this claim because of a second altercation with Mr King some 20 months after this incident. The Tribunal said that had the Claimant presented his claim in relation to the July 2019 incident in time, it would have derailed his attempts to let go of the incident;
- It was not unreasonable for the Claimant to want to resurrect this matter having been threatened by Mr King for a second time; and
- As a result, there was a reasonable explanation for the Claimant not having brought proceedings in time and why the Claimant brought them when he did.
Therefore, the balance of prejudice favoured the Claimant and the claim was allowed. The employer was held vicariously liable for Mr King’s actions.
This case has attracted significant media attention, and it is important for employers to be mindful that a comment from one individual to another, both of the same sex, does not preclude it from being harassment related to sex. This case also serves as a reminder that a “one-off” comment made to an employee some time ago, can be resurrected if that employee has further complaints later down the line, and there was a justifiable reason in their decision not to bring the claim at the time of the incident, for example, to try to resolve the issue. It is also a reminder for employers to give training to their staff on the dangers of workplace “banter” as well as clear policies and guidelines on what is acceptable conduct.