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Sexual harassment v harassment relating to sex | What’s the difference?
Written by Jack Murphy on 25 October 2024
Can comments about a male staff member’s baldness amount to harassment related to sex? Yes, according to a recent case which explored the scope of this type of claim and, indirectly, serves to highlight the distinction between this and sexual harassment.
British Bung Manufacturing Company Ltd and another v Finn
The Claimant in this case, Mr Finn, worked as an electrician at British Bung Manufacturing Company Ltd, a small family business employing about 30 staff. The majority of the workforce were male, and ‘industrial language’ was said to be common in the workplace.
Illustrating this type of behaviour, on one occasion, Mr Finn’s manager, Mr King, called him a “bald c*nt” and threatened him with physical violence. Mr King received a warning for his conduct, but the situation was far from resolved, and there was a further incident between the parties which resulted in Mr Finn saying that he had had enough of Mr King’s behaviour.
When Mr Finn was dismissed for gross misconduct regarding a separate matter, he brought claims for unfair dismissal, wrongful dismissal and harassment related to sex in relation to the comments made about his baldness.
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Outcome
In relation to the harassment claim, the Employment Tribunal found that Mr King’s comment about Mr Finn’s baldness had “crossed the line” as it was a personal remark about his appearance. The conduct was unwanted, and it had the purpose of violating Mr Finn’s dignity and created an intimidating, hostile, degrading, humiliating or offensive environment for him.
The Tribunal upheld Mr Finn’s sex-related harassment claim, finding that baldness is a predominantly male issue. The comment related to Mr Finn’s sex as it focussed on an aspect of his appearance (baldness), which is found most often amongst men.
The company appealed against this decision. Specifically, it argued that harassment related to sex should only apply to issues which are exclusive to a particular sex. As both men and women can suffer from baldness, it argued that the original finding shouldn’t stand.
Ultimately, however, the Employment Appeal Tribunal (EAT) dismissed the appeal in relation to the harassment claim. It found that there was no authority to uphold the company’s argument. The original decision stood.
Sex harassment v sexual harassment: Two different things
There has been a lot of misreporting on this matter, with many articles/reports seemingly failing to recognise that the claim was about harassment ‘related to sex’, rather than harassment ‘of a sexual nature’.
To be clear, Mr Finn brought a claim for harassment related to sex, not harassment of a sexual nature (commonly referred to as ‘sexual harassment’). It’s important for employers to be aware of the difference to avoid falling into the same trap of using the two terms interchangeably. Harassment related to sex and sexual harassment are two different things.
What is harassment related to sex (‘sex harassment’)?
This occurs when:
- Employee A engages in unwanted conduct related to sex; and
- The conduct has the purpose or effect of either violating Employee B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for Employee B.
What is harassment of a sexual nature (‘sexual harassment’)?
This occurs when:
- Employee A engages in unwanted conduct of a sexual nature; and
- The conduct has the purpose or effect of either violating Employee B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for Employee B.
Spot the difference? That’s the easy part – the tricky element is understanding what this means in practice.
What does this mean in practice?
Conduct of a sexual nature – one would hope – is relatively self-explanatory and would generally encompass conduct such as sexual comments/jokes, suggestive behaviour, sexual gestures, intrusive questions about someone’s private sex life (or discussing their own), sending sexually explicit emails, photos or messages, etc. From 26 October 2024, employers are under a duty to take “reasonable steps” to prevent such harassment occurring in the workplace.
Conduct relating to sex can be a little more difficult to identify, as illustrated by the Finn case. Under the Equality Act 2010, ‘sex’ is one of nine characteristics which are protected from discrimination (including harassment) in the workplace (and in wider society). For the purposes of the legal protection, ‘sex’ is a reference to a man or a woman.
In practice, this means employers need to scrutinise whether the conduct is inherently related to sex, i.e. was it fundamentally linked to the fact that the person was a) a man, or b) a woman?
What does “inherently related to sex” mean?
The legal test that was applied in the Finn case was as follows:
- How prevalent is the feature, to which the remark alluded, among those with the relevant protected characteristic (namely, sex)?
- Is there any other factor or circumstance that could explain the remark?
Simply put, something is “inherently related to sex” if it’s more prevalent with one sex than the other.
Note that it doesn’t necessarily need to be something that’s exclusive to that person’s sex. For example, as highlighted in this case, baldness can effect both men and women. However, it is inherently related to men because, statistically, it is more prevalent in men.
It’s extremely difficult to draw up an exhaustive list of examples that are inherently related to a particular sex. The main point here is to apply some consideration as to whether the conduct could be fundamentally related to that person’s sex by using the test above.
The legal tests applied in the Finn case were largely drawn from the case of Insitu Cleaning Co Ltd v Heads. In that case, the EAT held that a comment made by a manager to a female colleague about the size of her breasts amounted to sexual harassment. There, a similar argument was pursued that men could also have been subject to similar comments and, therefore, the conduct could not be related to sex. However, this was rejected and formed the basis of the decision in the present case.
Context is key
Context is always going to be key. It’s not as straightforward as categorising what constitutes ‘sex harassment’ based on the particular body part that has been commented on (although this will still be highly relevant). A degree of common sense will be needed, and it’s something that will need to be evaluated on a case-by-case basis. For instance, what was said? Who said it? How was it said? Where was it said? How was the comment perceived?
The potential awards that an Employment Tribunal can make in relation to a ‘sexual harassment’ claim and a ‘related to sex harassment’ claim can be similar. It’s therefore important to be aware of the circumstances that could give rise to a potential claim. Again, it’s possible for an employer to defend harassment claims if they can show that they have taken all reasonable steps to prevent the harassment occurring, which will include having policies in place and providing regular training to staff.
The key takeaway is this: even if the unwanted conduct isn’t ‘sexual’ in nature, always consider whether it could amount to harassment relating to that person’s sex.
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