Employment Law Digest October 2024- Case Law update

Harassment related to sex – baldness

In British Bung Manufacturing Company Ltd & King v Finn

• The claimant was employed as an electrician for a small family business employing around 30 employees.
• The workforce was predominantly, if not exclusively, male. “Industrial language” was found to have been commonplace on the shop floor.
• Following an altercation in 2019 between the claimant and a colleague, Mr King, over the removal of covers from a machine which had been awaiting specialist repair, Mr King called the claimant a “bald ****” and threatened him with physical violence. This resulted in a warning for Mr King for his conduct.
• There was another altercation in 2021 when Mr King again threatened the claimant, which resulted in the claimant, in a distressed state, telling the managing director and company secretary that he had had enough of Mr King’s behaviour and that, should they not fire him, “that would be it”. He then left the workplace.
• The claimant was later dismissed over a separate matter.
• He brought a claim before the Employment Tribunal (ET) for harassment related to sex (as well as other claims).
• The ET found that the language used by Mr King to the claimant in 2019 was unwanted conduct as far as the claimant was concerned and that Mr King had uttered those words with the purpose of violating the claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him, Mr King having admitted that his intention was to threaten the claimant and insult him.
• The ET found that there was a connection between the word “bald” on the one hand and the protected characteristic of sex on the other. Although women as well as men may be bald, baldness is much more prevalent in men than women and the ET found it to be inherently related to sex.
• The claim for harassment related to sex therefore succeeded.

The respondent appealed but the Employment Appeal Tribunal dismissed the appeal. It held that:

• The respondents’ submission that, in order for the unwanted conduct to relate to sex, it would have to apply to that sex to the exclusion of the other was not supported by any authority and, runs contrary to the purpose of the harassment provisions in the Equality Act 2010.
• The ET was recognising the fact that the characteristic by reference to which Mr King had chosen to abuse the claimant was more prevalent in people of the claimant’s gender, more likely to be directed at such people, and, as such, was inherently related to sex.

Over £1 million discrimination award

In Ms K Hibbert v The Chief Constable of Thames Valley Police:

• The claimant was a police officer working in a safeguarding role. The work associated with the role was emotionally intense, and at times the workload and competing priorities became overwhelming for the claimant.
• The claimant had a history of depression, anxiety and complex PTSD which meant she was vulnerable to episodes of depression and anxiety being triggered by stress at work.
• She had been advised by occupational health that having other interests and hobbies could help her to manage the intensity of her work and could benefit her mental health and wellbeing.
• She was given permission to set up a small party/events business alongside her police role. She thought the business could be a positive outlet to help her cope with her difficult role. She found working on the events business was highly beneficial to her mental health.
• The claimant was badly affected when she learned that a vulnerable young person she had been working with had died. She was signed off work by her GP.
• She was, while absent from her police role, still able to work on her events business because that work did not trigger her mental health issues. In fact, it was therapeutic and helpful for her recovery.
• At around this time, the permission which the claimant had been given to carry out a business interest was reviewed. The respondent’s policy on business interests provided that all approved business and external interests were subject to review to assess whether a business and external interest which had previously been authorised had become incompatible with working for Thames Valley Police.
• It was noted that the claimant’s business interest remained active while she was absent from work with stress and anxiety.
• The respondent withdrew permission for the claimant to run her side business. The claimant appealed this decision but the respondent did not correctly follow its own appeal procedure.
• The respondent brought disciplinary proceedings against the claimant for gross misconduct in connection with her side business although the proceedings were eventually dropped.
• The claimant resigned and claimed constructive unfair dismissal and disability discrimination.

The Employment Tribunal (ET) upheld her claims for discrimination arising from disability, failure to make reasonable adjustments and constructive discriminatory dismissal.

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The ET found that the withdrawal of permission to run the side business arose from her sick leave which, in turn, arose from her disability. The decision was not a proportionate means of achieving a legitimate aim for a number of reasons including that:

• Given the history and nature of her health issues, the withdrawal of the claimant’s business interest permission detrimentally affected her health and well-being and was likely to delay her return to police work rather than to speed it up.
• The claimant was not given the opportunity to comment on the proposed withdrawal before the decision was made.
• The respondent failed to comply with its appeal procedure and the speed with which the appeal decision was taken suggested that the appeal was not given careful consideration.
• The person who took the decision to withdraw permission stated that withdrawal of permission would avoid additional stress delaying the claimant’s return to work. She formed the view that withdrawal would have this effect without any evidence to support this, and without any knowledge of the claimant’s history of mental ill-health.
• Withdrawal was not necessary, on the facts, as the side business did not contribute to her stress and was therapeutic.

When considering compensation, the ET heard evidence that the discrimination had aggravated the claimant’s symptoms and exacerbated her mental disorders such that the claimant’s medical prognosis in the long term was assessed as “not so good”. The ET heard that the claimant saw her role as a police officer as a vocation and that had she not left she would have been promoted to an inspector role.

The ET awarded the claimant £1,176,368 in compensation, including over £600,000 as compensation for future financial losses.

The case is a warning to employers to not withdraw reasonable adjustments already in place without good reason and a careful investigation of the facts.

Band of reasonable responses

In University of Exeter v Plaut:

• The claimant, Dr Plaut, was a senior physics lecturer who had worked for the respondent since 1990.
• Some students found the claimant to be overbearing and excessively loud. The claimant had been the subject of investigation prior to the events that resulted in her claim to the Employment Tribunal (ET).
• In March 2019, following allegations that the claimant had held a student (student 1) by the neck and shone a light into her eyes, the claimant was suspended and later attended a disciplinary hearing which resulted in a final written warning, lasting 18 months.
• The claimant was suspended again in April 2019 because of a comment made about Professor Harries, the head of the physics and astronomy department, which was said to have resulted in an “irretrievable breakdown in working relationships”.
• While the claimant was suspended, another student (student 2) complained about the claimant’s treatment as a supervisor. The treatment complained about predated the first suspension and the issue of the final written warning in March 2019.
• The decision was made to progress to a disciplinary hearing regarding the allegations from student 2 and regarding an allegation that the claimant’s conduct had caused a breakdown in the relationship of trust and confidence with her colleagues.
• Following a disciplinary hearing, the claimant’s behaviour towards student 2 was considered an act of misconduct and, as she had a live final written warning, the decision was made to dismiss her with notice.
• The claimant brought a range of claims including unfair dismissal, victimisation, harassment and race and sex discrimination. She alleged that she was dismissed because of her ‘naturally loud voice’ which she attributed to her European Jewish background and that similar attributes were accepted in the male dominated workplace she worked in.

The ET found that she was unfairly dismissed and that she suffered victimisation and harassment. The ET found:

• That the matter involving student 1 was unacceptable conduct by Dr Plaut and warranted disciplinary action.
• However, the student 2 matter was in late 2018. Plainly Dr Plaut had not breached her final written warning, which was not imposed until March 2019.
• The student 2 issue was never a sacking matter, whether alone, or on top of an existing final written warning for a later matter.
• The decision to dismiss fell outside the band of reasonable responses which the ET said, “is not infinitely wide”. Senior management had decided that Dr Plaut would not be tolerated further.

The ET awarded a 25% uplift for the employer’s breach of the ACAS code but offset that by a 25% reduction by way of contributory conduct of the claimant. She was awarded £100,000.

The respondent appealed. The Employment Appeal Tribunal held that the ET had:

• conflated the legal tests for harassment and victimisation and so the appeals against those findings were upheld;
• “rather garbled” reasoning in determining the unfair dismissal complaint, for which some of the grounds of challenge succeeded. However, on a fair reading of the judgment as a whole it was clear the ET had concluded that if the dismissal was for the reason asserted by the respondent, it fell outside the band of reasonable responses because no reasonable employer would dismiss a long standing employee for the new conduct concern that was relied on by the respondent. Therefore the finding of unfair dismissal stood.
• failed to conduct the required analysis of why the University breached the ACAS code to justify a 25% uplift.

If you would like more information about these cases, or have any other issues surrounding employment tribunals, please get in touch with our expert team of Employment Lawyers.