In Finn v The British Bung Manufacturing Company, the claimant was found to be a victim of sex related harassment after being called ‘bald’ by a colleague during a heated argument. The Employment Tribunal also concluded that the claimant had been unfairly dismissed, although his compensation was reduced due to his conduct which was described as ‘culpable and blameworthy’.
You can read the full judgment here: Finn v The British Bung Manufacturing Company
The background of the case
Finn was employed as an Electrician with The British Bung Manufacturing Company (referred to as BBM). Finn’s employment commenced in 1997, and he had an unblemished disciplinary record until his summary dismissal in May 2021. In July 2019 there was an altercation between Finn and a colleague, King. King called Finn ‘bald’ during a verbal attack, and threatened physical violence.
Following the altercation, Finn provided a formal statement to BBM. After being advised that King had personal issues, Finn decided to give King the benefit of the doubt and move on. No further incidents occurred between Finn and King for the next twenty months.
On 25 March 2021, a heated disagreement took place between Finn and Hardcastle, Production Manager, about whether a machine needed to be shut down for maintenance work. King joined the conversation, and again made threats of violence towards Finn. Following the incident, Finn was evidently distressed and demanded that King be removed. As a result, Finn left work soon after and did not return.
Then, Finn attended an investigation meeting on 13 April 2021 and brought with him a prepared statement which his son had helped to write. Finn’s son was a Police Officer, and he typed up Finn’s statement on a police template. On noticing that the statement was headed ‘West Yorkshire Police’, Steer, Managing Director, ended the meeting saying that ‘if the police are involved it’s another matter’ and that he needed to speak to his solicitor.
Finn and his son both explained the circumstances, and that the incident had not been reported to the police. Nevertheless, they were both asked to leave immediately. Finn was subsequently suspended on full pay. In addition, BBM’s solicitors wrote to the police to report the use of a police witness statement. Finn was invited to attend a disciplinary meeting on 21 May 2021 to respond to an allegation that he had ‘provided a witness statement which falsely suggested… that it had been made to… West Yorkshire Police in connection with the investigation of an alleged crime’.
During the disciplinary meeting, Finn was informed that no decision would be made until a response had been received from the police. BBM did not receive a response from the police for approximately four months. Nevertheless, two days after the disciplinary meeting, Finn was dismissed with immediate effect.
Finn v The British Bung Manufacturing Company at Employment Tribunal
While the claimant brought a number of claims, the ruling for the claim of sex related harassment is of particular interest.
Although the claim was brought 18 months out of time, the Tribunal allowed the claim to continue on the grounds that it was in the public interest and they did not consider that allowing the claim would be prejudicial to BBM. The Tribunal found that while ‘industrial language’ was commonplace at BBM, ‘King crossed the line by making remarks personal to the claimant about his appearance’.
The Tribunal concluded that this amounted to ‘unwanted conduct’, ‘violating the claimant’s dignity and creating an intimidating, hostile etc environment for him’. In assessing whether there was a link between the unwanted conduct and a protected characteristic (ie sex), the Tribunal rejected BBM’s objection that baldness affects women as well as men. The Tribunal relied upon Insitu Cleaning Co Limited v Heads, which held that referring to the size of someone’s breasts is inherently related to sex. In Insitu, the Tribunal concluded that while comments could be made about the size of a man’s breasts, it was much more likely that the person on the receiving end of a comment about breast size would be female.
In Finn’s case, the Tribunal stated that ‘as all three members of the Tribunal will vouchsafe, baldness is much more prevalent in men than women. We find it to be inherently related to sex’. Therefore the claim of sex related harassment was successful.
In considering the unfair dismissal claim, the Tribunal found that it was reasonable for BBM to assume that Finn’s statement had been taken by the police in connection with the investigation of a crime due to the way it was presented. However, the Tribunal concluded that BBM had acted in bad faith by failing to wait for the outcome of the police investigation, when they had committed to do so. The Tribunal stated that BBM should have either waited for the response from the police, or they should have informed Finn of their change of position and given him the opportunity to make representations. As a result, the claim of unfair dismissal was successful.
However, the Tribunal applied the principles of Polkey v AE Dayton Services Ltd and concluded that had BBM awaited the outcome of the police investigation, Finn would have been fairly dismissed. Polkey provides that the level of compensation should be reduced if the employer can show that the end result would have been the same if they had followed a fair procedure. This is known as a Polkey reduction.
In Finn’s case, the Tribunal concluded that ‘the claimant’s conduct in presenting a statement in that form was culpable and blameworthy…The claimant’s conduct caused his dismissal’. The Tribunal also noted Finn’s refusal to apologise. Applying the principles of Polkey, the basic award was reduced by 50% and the compensatory award was reduced by 75% to reflect Finn’s culpability.
What does the Finn v The Bristish Bung Manufacturing Company ruling mean for employers?
Finn v The British Bung Manufacturing Company illustrates how language that may have previously been seen as ‘workplace banter’, can now result in a harassment claim. This is particularly the case where comments are made about personal appearance which relate to a protected characteristic, such as sex or race. Furthermore, Finn v The British Bung Manufacturing Company demonstrates how Tribunals are willing to hear claims submitted long after the relevant deadline, where it is in the public interest to do so.
Employers need to be able to demonstrate that they have taken appropriate steps to prevent such behaviour from occurring. Having robust equal opportunity and anti-harassment policies in place is essential. It’s vital that employees understand the difference between acceptable and unacceptable behaviour and language; providing training can be beneficial. Senior management should lead by example, ensuring their own behaviour is appropriate and addressing any issues that arise.
In the event that an employee does raise concerns, employers must ensure that the matter is investigated in line with company policy.
Finn v The British Bung Manufacturing Company also serves as a useful reminder of the Polkey principle, ie that compensation will be reduced if the employer can show that the end result would have been the same had a fair process been followed. However, employers would be wise not to rely too heavily on this case law. Following a fair and legal process to start with, is far simpler than defending a costly Tribunal claim which carries the risk of reputational damage.
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