Yes, according to a recent Employment Tribunal decision which has swept the headlines. The Tribunal found that a male employee, who was called a “bald [expletive]” during an argument at work, was subjected to unlawful harassment relating to his sex (namely, relating to his male gender). The Tribunal did not find that this was “sexual harassment” (a term now widely connected to the #MeToo movement) which the headlines incorrectly suggested was the case.
Harassment is unwanted conduct related to a protected characteristic that has the purpose or effect of either:
- Violating the victim’s dignity; or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim.
The relevant protected characteristics for a harassment claim are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.
In addition, harassment can also occur where the unwanted conduct is specifically of a sexual nature or where there is less favourable treatment of the victim because the victim has rejected the sexual conduct or because they have rejected conduct related to gender reassignment or sex. This is sexual harassment.
It is important, for employers and employees alike, to understand the distinction between sexual harassment and harassment related to sex in the workplace (a point overlooked by the tabloids when reporting on this decision). It is also important to flag the various other types of harassment which are unlawful and to ensure that employers are active in addressing workplace banter which could amount to a breach of the Equality Act 2010 in a post lockdown, digital era (with a spike in social media usage and “desensitisation” to name-calling).
The relevant Employment Tribunal decision (Finn v (1) the British Bung Manufacturing Company Ltd and (2) King) involved a claim for harassment “related to sex”. It was for the Tribunal to consider whether the comment about the employee being “bald” (unwanted conduct in this case) related to the Claimant being male.
When determining this issue, the Tribunal accepted that women (as well as men) may be bald – many headlines roped the infamous Oscar’s #punchgate in here. It noted, however, that baldness tended to be more prevalent in men and that it was more likely than not that the person on the receiving end of an unwanted comment about baldness would be male. The Tribunal found that the word “bald” was inherently related to the protected characteristic of sex, and therefore, the comment in question would be tantamount to harassment related to sex. In terms of the facts at hand, and whilst the language used was clearly offensive (and successful as being harassment related to sex), there was no claim brought for sexual harassment under the Equality Act 2010.
If workplace banter is not properly managed and/or relevant anti bullying and harassment training and policies are not in place, employers could be exposed to claims in the Employment Tribunal attracting compensation for financial losses and/or for injury to feelings. Employers should also be wary, as simply having policies in place is not enough. They should be able to show that they have taken somewhat of an active approach in ensuring said policies are communicated to employees regularly and that they are doing what they can to try to properly manage harmful, systemic banter at all levels of the hierarchy.
It is also important to note that employees do not need to have the protected characteristic personally for an unwanted comment to be tantamount to “harassment related to”, so long as that employee is associated with someone who does have the protected characteristic or is wrongly perceived to have it. For example, a white worker who sees a black colleague being subjected to racially abusive language could have a claim for harassment if the language also causes an offensive environment for her. A stand-alone act can also amount to harassment, as in the case at hand – the employee in question was only called “bald” on one occasion.
For further advice on managing workplace “banter” and preventing bullying and harassment in the workplace, or for advice if you have been subjected to this treatment at work, do not hesitate to contact our specialist employment team at email@example.com.