Man referred to as ‘bald’ at work wins harassment case

The recent case of Mr A Finn v The British Bung Manufacturing Company Limited highlights the importance of ensuring that claims of harassment are properly investigated and that wrongdoers are held to account.

Mr Finn was employed by The British Bung Manufacturing Company Limited as an electrician between September 1997 and May 2021, when he was dismissed from his employment without notice.

Mr Finn brought a number of claims, including sexual harassment and age discrimination.

First altercation

Towards the end of July 2019, there was an altercation between Mr Finn and another employee, Mr King, during which Mr King called Mr Finn a ‘bald c***’ and threatened to ‘knock him out’. Mr Finn provided a formal statement to his supervisor, Mr Hudson. He was told that Mr King was raising a young child by himself and, should he [Mr Finn] wish to take matters further this could result in Mr King losing his job. Therefore, Mr Finn decided to ‘draw a line under the matter and move on’.

Following this incident in July 2019, no issues occurred between Mr King and Mr Finn until March 2021.

Second altercation

In March 2021, Mr Finn was asked to modify a machine and he needed Mr King to shut it down, which he did. However, Mr King went and spoke with his supervisor, Chris Hardcastle. Mr Hardcastle then proceeded to question what Mr Finn was doing. Mr Finn states that he said to Mr Hardcastle ‘I don’t think you’re getting me Chris, its working because I have to put a f***ing spur on it’. At that point, Mr King told him not to swear at Mr Hardcastle and an argument started. Mr Finn said to Mr King to ‘go away’ and Mr King shouted ‘Come on then, make me, you bald old c***. Make me!’ Mr Finn stated that he went to the office to report Mr King and told the supervisors that ‘… it’s him or me, it’s time for you to choose’. When there was no response, Mr Finn left the office and drove home. He states that no one called him afterwards, to check on his welfare.

Mr King stated that he did not like the way he had been spoken to, claiming that Mr Finn told him to ‘turn that f***ing machine off’. Mr King denied threatening Mr Finn and calling him an ‘old bald c***’.

The employment tribunal (ET) decided that, based on all the evidence provided, they preferred Mr Finn’s account of events, rather than Mr King’s. They found that Mr King did threaten Mr Finn, however they did not find that he had made pejorative remarks about Mr Finn’s age or appearance.

Investigation meeting

Mr Finn did not come back into work and there was no contact between Mr Finn and his employer until 8 April 2021, when Mr Finn contacted his employer following receipt of his wage slip. This was because he had been paid statutory sick pay during this period, rather than his full salary. On 9 April, Mr Finn was invited to attend an investigation meeting. He wanted to attend with his son, but thought that he may not be allowed to be accompanied by his son, given he was not a trade union representative nor an employee. Therefore, they decided to prepare a written statement of events. Mr Finn’s son is a police officer and used a ‘witness statement’ template headed ‘West Yorkshire Police’. At the investigation meeting, Mr Finn’s manager took the statement from him and, when he saw that it said Police on the top of it, he ended the meeting. Mr Finn was later suspended on full pay. On the same day, the company’s solicitor wrote to the Chief Constable of West Yorkshire Police with the details of the template witness statement and requesting that the matters are investigated, that is, the use of a police template.

Disciplinary hearing

On 12 May 2021, Mr Finn was invited to attend a disciplinary hearing on 21 May 2021. Following the investigation meeting, Mr Finn was told that a decision would be made following the outcome of the West Yorkshire Police investigations. Although nothing had been heard from the police between 21 May and 25 May 2021, Mr Finn was dismissed on 25 May 2021 for ‘deliberately provid[ing] a witness statement which falsely suggested on its face and content, that it had been made to, and taken by, West Yorkshire Police in connection with the investigation of an alleged crime’. The letter of dismissal went onto to state that ‘we are satisfied that your actions amount to gross misconduct justifying your immediate dismissal. In light of your failure to apologise, and insistence that you have done nothing wrong, we are satisfied that it would be impossible to have trust and confidence in you as our employee’.

Mr Finn appealed and his appeal was dismissed.

ET findings – harassment

Mr Finn’s complaint of harassment centres on the incidents, which occurred in July 2019 and March 2021. Mr Finn claims that on both occasions Mr King subjected him to harassment related to age and sex by referring to him as ‘an old bald c***’.

The ET held that Mr Finn was not discriminated against on the basis of age, as it determined that the word ‘old’ was not used on either occasion. The ET held that calling someone a ‘bald c***’ was unwanted conduct. Mr Finn did not complain about the use of industrial language towards him other than the references to ‘old’ and ‘bald’, therefore, the ET found that he was particularly affronted by them. In its conclusions, the ET stated that:

‘It is difficult to conclude other than that Mr King uttered those words with the purpose of violating the claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him’.

In the ET’s judgment, there was a connection between the word ‘bald’ and the protected characteristic of sex. Although women as well as men may be bald, the ET stated that baldness is much more prevalent in men than women.

Summary and advice

The amount to be awarded to Mr Finn is still to be determined at a remedy hearing.

Employers should note that they can be vicariously liable for certain actions of their employees. Therefore, it is important to ensure that:

• Appropriate policies are in place for dealing with allegations of harassment.
• The correct procedures are followed for investigating such complaints.

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