REWARD
Harassment, long Covid, ethical veganism
Nicola Mullineux, senior employment specialist for Peninsula, explores the interesting outcomes of three different recent employment law cases
Calling employee bald amounts to unlawful harassment The employment tribunal (ET) had to consider whether an employee being called bald amounted to sex and age- related harassment. In Finn v British Bung Manufacturing Ltd, the claimant was employed as an electrician and had worked for the respondent in a factory from September 1997 until May 2021, when he was dismissed without notice. Finn raised claims for unfair dismissal, detriment, harassment and victimisation. All claims other than the claim for sex- related harassment were dismissed. Prior to his dismissal, the claimant was involved in an altercation with the factory supervisor, during which the supervisor called him a ‘bald c***’. The argument left the claimant fearful for his safety and created an intimidating environment for him. However, two key tests must be met for the conduct to amount to harassment: ● first, the unwanted conduct in question must have the purpose or the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them ● second, the conduct must relate to a relevant protected characteristic. Where a direct reference is made to an employee’s protected characteristic, the necessary link will usually be clearly established. Where the link between the conduct and the protected characteristic is less obvious, tribunals may need
to analyse the precise words used, together with the context, to establish whether there’s any negative association between the two. In this case, the ET had to consider whether being bald was inherently linked to the male sex and, if so, whether the comment violated his dignity or created an offensive environment. Any offensive comments linked to a protective characteristic could lead to successful harassment claims The ET found that the claimant wasn’t offended by the ‘industrial language’ used (i.e., the use of the expletive), but was offended by being called bald. The ET were satisfied that the conduct towards him (calling him bald) was unwelcome and uninvited, so therefore unwanted. It determined that it was difficult to decide anything other than that his supervisor called him bald with the purpose of violating his dignity and creating a humiliating environment. As a result, the first test was met. The ET then considered the issue of whether the expression was related to the protected characteristic of sex. It ruled out that it was age-related, since young men were just as likely to be bald. In
its judgement, it concluded there was a connection between baldness and being male, stating that baldness is much more prevalent in men than in women. Therefore, the second test was also met, so the harassment claim succeeded. It’s interesting to note that the tribunal highlighted the panel was comprised of three bald men. As such, it remains to be seen whether the case will be appealed, either on the grounds of bias, or to argue that the harassment tests weren’t met. Nonetheless, employers should keep in mind that any offensive comments linked to a protective characteristic could lead to successful harassment claims. To minimise the risk of such, employers should pro- actively take reasonable steps to prevent harassment occurring in the first place.
This can be achieved by: ● having equality policies
● communicating a zero-tolerance stance against any form of bullying, discrimination and harassment ● introducing robust channels to report allegations, which employees are aware of ● training managers on how to effectively respond to allegations ● treating allegations seriously and investigating them fully ● taking appropriate action against any perpetrators. Long Covid is confirmed as a disability The ET has, for the first time, considered whether an employee who suffered
| Professional in Payroll, Pensions and Reward | September 2022 | Issue 83 42
Made with FlippingBook - Online magazine maker