An employment tribunal has recently been in the news for its outcome, whereby an electrician who was called a “bald ****”by a work colleague, was found to be a victim of sex-related harassment.
The Sheffield tribunal recently heard a case brought by Mr Finn. Mr Finn was employed by the British Bung Company.
Mr Finn alleged he had been harassed and threatened with physical assault following him questioning a colleague (Mr King) regarding a piece of machinery.
Mr King responded to Mr Finn by calling him “a bald ****”.
The tribunal found the insult was unwanted conduct and whilst the language was deemed as industrial language on the West Yorkshire factory floor, Mr King was found to have crossed the line by making reference to Mr Finn’s appearance which had created an intimidating, hostile, degrading, humiliating, and/or offensive environment.
Mr King admitted he had referred to Mr Finn as the allegation stated and continued to inform the tribunal that he (Mr King) was going to “knock him out”.
When Mr Finn raised the issue with his supervisor, they requested him to drop the issue. This action was agreed by Mr Finn.
Almost two years later and during the pandemic, Mr Finn was furloughed and only returned to the workplace on an ad hoc basis. On 25 March 2021, Mr Finn was requested to shut down a machine and, therefore, he approached Mr King (as the only supervisor on duty, his authorisation was required). Mr King sought assistance from Mr Hardcastle (a production manager) who disputed the machine needed to be shut down.
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Mr Finn alleged that Mr Hardcastle then started swearing at him and in turn, Mr Finn responded by also swearing. This led to Mr King telling Mr Finn not to swear at Mr Hardcastle and an argument ensued between Mr Finn and Mr King. Mr Finn alleged Mr King called him “an old bald ****” and also threatened him with physical violence.
Mr King denied these allegations, and the tribunal found he “did not make pejorative remarks about the claimant’s age or appearance”, but that he did threaten Mr Finn with physical violence.
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Between 25 March and 8 April 2021, Mr Finn had no contact with anyone at The British Bung Company. He only contacted them regarding a query over his payslip. Mr Finn was subsequently invited to an investigatory meeting about the incident in March. Mr Finn’s son, who happens to be a police officer, helped him prepare a statement (the statement itself was used from a template with the words “West Yorkshire Police’ and included the words: “‘WITNESS STATEMENT’ (Criminal Justice Act 1967, s9; Magistrates’ Courts Act 1980 s5B; Criminal Procedure Rules, Rule 16.2)”).
There were no contemporaneous notes of this meeting, but the tribunal was informed it ended abruptly when Mr Finn presented his witness statement.
Following the meeting, Mr Finn was sent a letter by his employer on 13 April 2021, that stated the implications of his witness statement were “very serious”. Mr Finn replied explaining it had been prepared by his son and “was not done with the intention to mislead anyone”.
However, following a disciplinary hearing to discuss the witness statement, Mr Finn was told by letter on 25 May 2021, that he was being dismissed for gross misconduct.
The dismissal letter alleged Mr Finn had “deliberately provided a witness statement which falsely suggested on its face and by its content, that it had been made to, and taken by, West Yorkshire Police in connection with the investigation of an alleged crime”. Mr Finn appealed but failed.
The tribunal’s judgment found Mr Finn was a victim of harassment relating to sex as a result of the incident in July 2019. Although the claim was brought 18 months out of time, the tribunal extended the period because it was “in the public interest that such complaints are considered and adjudicated upon and that wrongdoers are held to account”.
Claims of harassment related to age and sex as a result of the March 2021 incident were dismissed.
However, a claim of detriment arising from a health and safety reason succeeded because Mr Finn had been “ostracised and ignored” and his claims were not properly investigated by the respondent following the March 2021 incident.
The complaint of wrongful dismissal succeeded because whilst Mr Finn could reasonably be found guilty of destroying the trust between employer and employee with his witness statement – it was found that his intentions in presenting the statement were “to be helpful and preserve the relationship” and Mr Finn had tried “no fewer than seven times” to reassure his employer there was no police investigation.
A claim of unfair dismissal was also successful on the grounds the employer did not act in good faith during the disciplinary procedure. However, a further claim that Mr Finn was unfairly dismissed for a protected disclosure, failed.
The award for compensation will be determined at a later date.
The full judgment can be read at: