on Friday, 11 October 2024.
In the case of Finn v British Bung Manufacturing Company, the EAT has clarified the scope of sex-related harassment. The case concerned an incident in a manufacturing environment where an employee was subjected to a derogatory comment referencing his baldness during a workplace dispute. The claimant brought a claim for sex-related harassment.
It is important not to confuse sex-related harassment and sexual harassment. Sex-related harassment occurs when someone is subjected to unwanted conduct related to their sex. This type of harassment doesn’t have to be sexual in nature, but it must be linked to the individual's gender. For example, derogatory comments about a person's physical traits that are predominantly associated with one gender can be considered sex-related harassment if the remarks create a hostile or offensive environment.
On the other hand, sexual harassment involves unwanted conduct of a sexual nature. This could include inappropriate comments, advances, touching, or any behaviour that is explicitly sexual and that violates a person's dignity or creates an intimidating, degrading, or hostile environment.
An Employment Tribunal found that the comments about baldness amounted to sex-related harassment. In the Tribunal's view, they were linked to the claimant's gender (he is a man) and created a hostile or offensive environment.
The employer appealed against the Tribunal's decision. It argued that the characteristic referenced in a comment (in this case baldness) should be exclusively associated with the gender of the complainant to in order to constitute sex-related harassment. The employer argued that as baldness can affect individuals of all genders, comments related to that characteristic cannot be considered sex-related harassment.
The EAT dismissed the appeal. It found that the comment about baldness did amount to sex-related harassment. The EAT noted that baldness is a characteristic predominantly associated with men, thus relating the remark to the claimant's sex.
Whilst baldness can occur in individuals of all genders, the EAT rejected the Respondent’s argument that this precluded baldness from being a characteristic related to sex for the purposes of harassment claims.
The ruling confirms that comments about physical traits more common in one gender can potentially form the basis of a sex-related harassment claim, even if the trait is not exclusive to that gender.
This decision provides an interesting clarification on what can constitute sex-related harassment. The key takeaway is that the characteristic at issue does not need to be exclusively associated with one gender. Instead, it is enough if the characteristic is predominantly associated with one gender, as is the case with baldness being more common in men.
Employers should ensure that all forms of inappropriate comments or conduct in the workplace are taken seriously, even when they are not overtly sexual or exclusively linked to one gender. By staying alert to how remarks about physical traits or appearance can contribute to a hostile work environment, employers can better manage risk and uphold a respectful workplace culture.