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A recent tribunal ruling highlights the potential for name-calling and abusive language to form the basis of a discrimination claim (in addition to possible constructive dismissal claims) even where the discriminatory nature may not be obvious. While ‘sexual harassment’ focusses on behaviour of a sexual nature, harassment ‘related to sex’ can cover a much broader type of behaviour, and for both there is no minimum service requirement to bring a claim nor any cap on potential compensation (unlike for unfair constructive dismissal). In Finn v The British Bung Manufacturing Company Ltd the employment tribunal held that the use of the adjective “bald” alongside expletives amounted to unlawful harassment related to sex. Having found that the insults had been uttered by a colleague with the purpose of violating the claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him, it then held that there was a sufficient link between the words and the protected characteristic of sex given that baldness is much more prevalent in men than women. (The tribunal also thought that, because baldness can affect adult males of all ages, it is not inherently a characteristic of age; data showing that significant hair loss increases considerably with age seems not to have been considered.)
The statistical approach to what can be seen as ‘related to sex’ – or indeed one of the other types of protected characteristic – extends the scope of potential harassment claims in a way that may come as a surprise to employees and increases the risks associated with making comments about personal appearance or characteristics (where the context is such that these have the purpose or effect of creating an intimidating etc environment). It is therefore important to ensure staff are regularly given training which explains this and gives clear examples of discrimination and harassment. In workplaces where “industrial language” is common, as in this case, it is all the more important that staff understand where the boundary of acceptable language lies.
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