Two employment tribunal decisions concerning sex discrimination, harassment and victimisation claims under the Equality Act 2010 have recently featured in news headlines.
The first concerned an employment tribunal decision that use of the word “bald” to describe a colleague can amount to sex harassment in the workplace.
In the second, an ex-firearms officer for Police Scotland won a victimisation claim in the employment tribunal last year and has subsequently settled her claim for almost £1 million in compensation.
We analyse the implications for employers below.
Finn v The British Bung Manufacturing Company Ltd
Mr Finn worked as an electrician for the British Bung Company for 24 years, prior to his dismissal in May last year for alleged misconduct. During his employment Mr Finn had been involved in arguments with his supervisor, Mr King, in relation to factory equipment.
The arguments had been particularly aggressive, involving extremely strong language, with Mr King referring to the claimant as a “bald c**t” on more than one occasion.
The employment tribunal upheld the claimant’s subsequent claims for sex harassment, unfair dismissal and wrongful dismissal, but dismissed a claim of age discrimination. In particular, the tribunal held that the comments made had been personally offensive to Mr Finn.
In terms of the statutory test for harassment in the Equality Act, the tribunal concluded that the “….conduct was unwanted, it was a violation of the claimant’s dignity, it created an intimidating environment for him, it was done for that purpose, and it related to the claimant’s sex.”
The tribunal found a connection between the word “bald” and the claimant’s sex because it concluded that baldness is much more prevalent in men than women. It was therefore much more likely that a person on the receiving end of the remark Mr King made would be male.
However, the claimant’s age discrimination claim failed because baldness affects adult males of all ages and so was held not to be an inherently age-related characteristic. The compensation to be awarded to Mr Finn is yet to be determined.
Malone v Chief Constable of the Police Service of Scotland
Ms Malone was a firearms officer within Police Scotland with 11 years’ service before her eventual ill health retirement in 2020. She had submitted various internal complaints in relation to sexist attitudes and comments made by colleagues.
In particular, Ms Malone complained about an email from an Inspector instructing that two female firearms officers should not be deployed together if a male officer was available, because apart from “the obvious differences in physical capacity, it makes more sense from a search, balance of testosterone perspective”. At a meeting to discuss the email, another officer threatened to suspend Ms Malone from firearms duty because of the way in which she was reacting.
A subsequent grievance from Ms Malone related to the manner in which Police Scotland had handled her initial complaints, including the investigation carried out by a senior officer.
Ms Malone’s eventual claim for direct sex discrimination failed in the employment tribunal, because the less favourable treatment related to the Inspector’s email did not take place. The instruction not to deploy two female officers together was countermanded before it took effect.
However, the tribunal upheld the claimant’s claim of victimisation relating to various acts of detrimental treatment that followed her protected act i.e. her complaints of sexism. Evidence that the workplace culture was “horrific” and an “absolute boys club culture” was accepted by the tribunal.
Following the employment tribunal’s decision on liability, Police Scotland have recently settled the claim with Ms Malone for a reported £948,000 relating to compensation and costs. Police Scotland have also issued a public apology and commitment to changing the culture within the force.
Takeaways from the Finn case
The Finn case has no doubt gained attention due to the extreme language that was involved, but the conclusion that the word “bald” amounted to sex harassment may also come as a surprise to many employers. The respondent argued that women can also be bald, but the three male members of the tribunal stated that “as all three members of the Tribunal will vouchsafe, baldness is much more prevalent in men than women”.
The decision certainly highlights the potential breadth of harassment protection available to workers under the Equality Act. While there is no standalone claim for bullying or intimidation by colleagues at work, if an employee can point to a protected characteristic at the centre of the relevant conduct, a harassment claim may succeed (alongside a potential unfair dismissal claim).
It is also easy to forget that the sex of the harasser is not necessarily relevant. This case involved two male colleagues in a workplace dispute, rather than the more common occurrence of workplace sex harassment involving a male employee and a female colleague (or vice versa).
The decision reminds employers to regularly review their equal opportunities and anti-harassment policies, and to take swift and effective action in relation to untoward conduct.
Takeaways from the Malone case
In the Malone decision, Police Scotland have learnt to its detriment that not all employees are willing to agree to confidentiality as part of a settlement package.
During negotiations, Ms Malone accused the Scottish Police Federation of pressurising her to settle and sign a non-disclosure agreement (NDA) offered by Police Scotland and then refusing to fund her ongoing case when she declined to do so.
She subsequently funded herself through the employment tribunal proceedings and has since stated “it was never about the pay out, it was about acknowledgement and accountability and I was getting none of that with an NDA, I was getting silence and suppressed”.
NDAs have been the subject of much scrutiny in recent years and best practice guidance has been issued by various sources, including ACAS, the Equality & Human Rights Commission, and the Solicitors Regulation Authority.
As a result, confidentiality provisions in settlement agreements are usually of limited scope. For example, employees will still be able to make protected disclosures, and report concerns to a relevant regulator or the police, for example.
However, an obligation on the employee to keep the existence of the settlement agreement and the details of the financial package confidential remains commonplace and is generally expected by any employer offering settlement terms.
Malone demonstrates that on occasion, employees in dispute with their employer will prioritise public exposure of the perceived wrongdoing over the prospect of personal financial reward. Employers must then balance the competing legal, commercial, and reputational considerations when deciding the best way forward.
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