As a recent case has highlighted, there is an important distinction between “sexual harassment” and “harassment related to sex.” Both can lead to claims and legal consequences for employers, but the nature of each is different, and it’s important for HR leaders to understand these nuances to manage workplace issues effectively.
British Bung Manufacturing Company Ltd and another v Finn
In this case, Mr. Finn, an electrician at British Bung Manufacturing, alleged that his manager, Mr. King, made offensive remarks about his baldness and created an intimidating work environment. Mr. King’s language included calling Mr. Finn 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.
After Mr. Finn’s subsequent dismissal for gross misconduct regarding a separate matter, he brought forward claims for unfair dismissal, wrongful dismissal, and harassment related to sex in relation to the comments made about his baldness.
In relation to the sex-related 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.
Sexual Harassment vs. Sex Harassment
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’. In Mr. Finn’s case, the claim was for harassment related to sex, not harassment of a sexual nature (sexual harassment). Here’s the difference:
What is Harassment Related to Sex (or ‘Sex Harassment’)?
- Involves conduct related to someone’s sex that is unwelcome or offensive.
- It is not sexual in nature but instead relates to the person’s sex.
- To qualify, the conduct must have the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment.
Example: Remarks about baldness may be deemed sex harassment, as it disproportionately affects men.
What is Sexual Harassment?
- This type of harassment involves unwanted conduct of a sexual nature.
- The conduct has the purpose or effect of either violating someone’s dignity or creating and intimidating, hostile, degrading, humiliating, or offensive work environment.
Example: 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.
What does this mean in practice?
From 26 October 2024, employers are under a duty to take “reasonable steps” to prevent sexual harassment occurring in the workplace.
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?
Key considerations for employers
What does “inherently related to sex” mean?
To determine if conduct is related to sex, ask:
- Prevalence: Is the behaviour or trait more common in one sex than the other?
- Context: Was there another reason behind the comment?
Simply put, something is “inherently related to sex” if it’s more prevalent with one sex than the other.
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.
Key takeaways
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.
