Industrial language may be commonplace where you work but beware – you may be crossing the line if you make personal remarks about a colleague’s appearance, particularly when those remarks tend to be associated with one gender.
In the recent case of Mr A Finn v The British Bung Manufacturing Company Ltd (1) & Mr J King (2), Mr Finn was employed as an electrician in a small company that made beer barrel stoppers. An incident occurred whereby a colleague of Mr Finn - Mr King – got angry with him, threatened to “deck” him and called him a “bald c**t”.
Mr Finn brought several claims against both the company and Mr King as an individual. One of those was for sex-related harassment under the Equality Act 2010 (not to be confused with sexual harassment which concerns conduct of a sexual nature).
An employment tribunal had to first decide if Mr King’s comment was unwanted conduct. It had little doubt that it was. Whilst it found that “industrial language” was commonplace on this West Yorkshire factory floor, it concluded that Mr King had crossed the line when he made personal remarks about Mr Finn’s appearance. The tribunal also had little difficulty finding that Mr King’s comment had the purpose of violating Mr Finn’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him – by his own admission, Mr King had intended to threaten and insult Mr Finn.
But the thornier issue the tribunal had to grapple with was whether, by calling Mr Finn a “bald c**t”, this was conduct related to the protected characteristic of sex – in other words, could Mr Finn show a link between the words used and his male gender? The tribunal concluded that he could - because, even though some women were bald, baldness was much more prevalent in men. Therefore, baldness was “inherently related to sex”. In contrast, the tribunal discounted the possibility of baldness being inherently related to the protected characteristic of age, since it predominantly affected adults of all ages.
The tribunal’s conclusion, which some might find surprising, was that, by calling Mr Finn a “bald c**t”, Mr King, and his employer, were guilty of sex-related harassment, entitling Mr Finn to compensation.
Whilst the case demonstrates the risk of calling someone “bald” at work, even as part of workplace banter, its impact is not to be overstated. First, it is only a first instance decision, not one made by an appellate court, and so is not binding on other tribunals. Secondly, it turns on its particular facts – including the admitted intention of Mr King to threaten and insult Mr Finn. Nevertheless, whilst it would be a step too far to ban the term “bald” from the workplace, people would be well-advised to watch their words uttered in anger or as part of workplace banter, particularly when using terms more associated with one gender than another. Your intention may not be to cause offence, but if that is the effect of your words, you may fall foul of the legislation against discrimination and harassment. Be warned.