Workplace banter is commonplace in the construction sector. It is important for employers to strike a balance and ensure that a friendly, good-humoured workplace atmosphere does not cross the line and become a hostile environment rife with bullying and harassment.
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Facts
Mr A Finn (the Claimant) was employed by The British Bung Manufacturing Company Ltd (the Respondent) for a number of years before being dismissed on 25 May 2021. At the end of July 2019, there was an altercation between the Claimant and one of his colleagues, Mr J King. During the altercation the Claimant was called a “bald c***” and threatened with violence by King. A formal statement was made regarding the incident but the Claimant chose not to take it further due to King’s personal circumstances at the time. There was a further incident of threatened violence to the Claimant by King in March 2021.
The Claimant was dismissed from the Respondent company in May 2021 for gross misconduct following an internal disciplinary hearing where it was alleged that he had falsely suggested to have made a witness statement with the West Yorkshire Police in connection with the incidents concerning King. The Claimant brought a number of claims for wrongful dismissal, detriment, unfair dismissal, harassment and victimisation. He was successful in his claims of unfair dismissal, wrongful dismissal, detriment and harassment.
The Claimant’s harassment claim is of particular interest.
Legal background
To bring a successful claim for harassment under Section 26 of the Act, there has to be:
- unwanted conduct;
- relating to a protected characteristic (gender, race, religion, sexual orientation, disability and age – these are the only protected characteristics specifically protected under section 26 of the Act);
- which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.
In this matter the tribunal found the test had been met as:
- Despite industrial language being commonplace on the factory floor, the tribunal found that the comment by King crossed the line by making remarks personal to the Claimant’s appearance which therefore meant the conduct was unwanted.
- The comment was related to a protected characteristic (gender) as the tribunal concluded baldness is more prevalent in men than women.
- It was offensive – the tribunal considered that by his own admission King had stated his intention was to threaten and insult the Claimant, therefore the purpose of the statement was to violate the Claimant’s dignity and create an intimidating and hostile environment.
Although the first incident took place in July 2019 and the Claimant did not commence the early conciliation process until 26 May 2021 and was therefore out of time, the tribunal considered that in this matter it was just and equitable to extend the time limit as it is a matter in the public interest and they did not consider that allowing the claim would be prejudicial to the Respondent.
The Claimant was therefore successful in this part of his claim as he met the test requirements.
Comment
This is an interesting case showing the dangers of ‘workplace banter’ and a great reminder to look strictly at the statute when considering the requirements for harassment. Employers have a responsibility to create a safe working environment. When workplace culture becomes a problem, the risk of claims increases significantly.
Against the backdrop of such a competitive labour market, employers also need to consider the impact on talent recruitment and retention. The reputational fallout from such claims can be as damaging as the claim itself.
It will be fascinating to see if there are any subsequent cases that arise as a result of this judgment and we will definitely be keeping our eyes peeled. We expect more will be published regarding the Claimant’s remedy if a settlement cannot be reached between the parties.
In the construction sector where industrial language is the norm, care needs to be taken to ensure a positive workplace culture is fostered. Employers have a responsibility to create a safe working environment, free from bullying and harassment; failure to do so can have a significant impact on the employer’s reputation and ultimately exposes them to the risk of claims.
Ann Frances Cooney is a partner at DWF LLP; Ola Soyemi is a trainee solicitor at DWF LLP
