Employee faces unfair dismissal after facing sex-related discrimination; ET rules in favour of employee

In the case of Mr A Finn v The British Bung Manufacturing Company Ltd, Mr A Finn was successful in his claims for unfair dismissal, and health and safety detriment. On giving an ultimatum to the MD of the company to take action, he was wrongfully and unfairly dismissed. The ET found that Mr A Finn had in fact been harassed and faced sex-related discrimination by 2nd Respondent, Mr Jamie King.

The Facts in Mr A Finn v The British Bung Manufacturing Company Ltd

Mr Finn (the “Claimant”) commenced employment with The British Bung Manufacturing Company Ltd (“1^st Respondent”) as an electrician on 22 September 1997.

During the course of his employment, the Claimant argued that he had:-

• suffered detriment for having made a number of protected disclosures;
• suffered detriment for health and safety reasons;
• been subjected to harassment because of his sex and age;
• been subjected to victimisation;
• been unfairly dismissed (both automatic and ordinary);
• been wrongfully dismissed.

On 31 July 2019, an altercation took place between the Claimant and Mr Jamie King (“2nd Respondent”). The Claimant stated  “I was working on a machine that I had to cover awaiting specialist repair. The covers were taken off, and it was apparent that Jamie King had done this. When I spoke to him about it, he began to call me a stupid old bald cunt and threatened to ‘deck me.“. This made the Claimant fearful for his own personal safety and so he retreated to the nearby office of Ady Hudson, supervisor.  The 2^nd Respondent in his statement denied using the word “old” in his insult.

On 26 March 2021, another incident involved an altercation between the Claimant and the 2^nd Respondent.  The Claimant needed to carry out some modifications on a machine due to technical problems. He requested that the 2^nd Respondent, whose role was to set the machine up for production (“setter”), shut down the machine in order that he could do this.  He did this but returned with his supervisor, Chris Hardcastle. Then, an argument ensued over the need to perform the work on the machine.  The 2^nd Respondent came up behind him and joined in the argument supporting his supervisor. At some point, he became more threatening and wanted to fight. He called the Claimant an old bald cunt (use of the term “old” was also disputed).

The Claimant feared for his personal safety. He felt alarmed, distressed, and concerned that violence would be used against him. The Claimant walked away to avoid further confrontation. Furthermore, he reported the incident to Doug Taylor, Company Secretary and Mike Steer, Managing Director of the 1^st Respondent. He argued that he was upset after having been threatened and abused, giving the ultimatum that it was either he leave or the 2^nd Respondent.  After failing to get a sympathetic hearing, he left the office and went home.

On 9 April 2021, the Claimant’s son, a police officer, emailed Mr Taylor expressing concern that no contact had been made with his father. Mr Taylor invited the Claimant to attend an investigation meeting at the 1^st Respondent’s offices on 13 April 2021.  Both the Claimant and his son attended the meeting.  The Claimant presented a police witness statement, that seemed written by West Yorkshire Police. It seemed to imply that the employees were involved in a crime and the police were getting involved.

On 13 April 2021, Mr Taylor emailed the Claimant informing him that he was suspended on full pay. On the same day, the 1^st Respondent’s solicitor wrote to the Claimant. He informed the Claimant that the matter had been taken up with the police to investigate.

The Claimant was then invited to a disciplinary hearing on 21 May 2021. He was faced with the allegation that he had provided a witness statement which gave the false impression that it had been made to and taken by West Yorkshire Police, in connection with the investigation of an alleged crime.  He was warned that the outcome could be dismissal.

On 25 May 2021, Mr Taylor sent an email to the Claimant. This email included a letter giving the Claimant notice that he had been dismissed with immediate effect. On 26 May 2021, the Claimant emailed Mr Taylor setting out his appeal. He argued that the statement was “an honest way of providing you with my chronology of events that happened in the workplace, made only to assist you and others conduct your investigations as is your duty as an employer.” He added that the statement did not intend to give the impression that it had been written as part of a police investigation. On 18 June 2021, Mr Gledhill, a director of the 1^st Respondent, informed the Claimant that his appeal had not been upheld.

On 30 September 2021, West Yorkshire Police wrote to the 1^st Respondent’s solicitor. They said that the “service level” provided by Mr Finn was acceptable in the circumstances but he should not have used the police template. He would “learn from reflection”, and receive words of advice about his conduct but there would also be a review.

On 18 November 2021, the West Yorkshire Police notified the 1^st Respondent of the review’s outcome.  Before this, PC Khan who represented the Service Review team had emailed the 1^st Respondent on 24 August 2021. The email was to outline his understanding of their complaint.

Since PC Khan did not receive a reply, he assumed the 1^st Respondent had understood everything properly. The review caseworker was left to uphold PC Khan’s conclusions and make no further recommendations. This meant that the West Yorkshire Police would take no further action.

The Decision of the Employment Tribunal (ET)

The ET found that the Claimant faced unfair dismissal.  They added that the decision to dismiss him before the West Yorkshire Police investigation was not a fair or reasonable response. They also concluded that the Claimant did not intend to destroy or abandon his contract. Instead, he was trying to preserve the relationship, therefore he had also been wrongfully dismissed.

The ET found that the 2^nd Respondent calling the Claimant a “bald cunt” was a violation of his dignity. It also amounted to sex-related discrimination under the Equality Act 2010, as it created an intimidating environment for him. However, the use of the word “old” was not considered age discrimination.

The ET found that the 1st Respondent was in breach of its legal obligation. This was because he did not create a safe place for the Claimant who felt threatened by the 2nd Respondent’s behaviour.

The Claimant’s other claims were not upheld.

Our Lawyer Steve Norton’s View on This Case

This is a helpful reminder to employers that workplace “banter” and name-calling can lead to discrimination and harassment complaints. It may not be immediately apparent that the language used by an individual could relate to a protected characteristic. However, comments about an individual’s size, shape or appearance, could be deemed to be sufficiently related to a protected characteristic to give rise to such a claim. An employer may be liable under the Equality Act 2010 if it fails to protect its employees and other workers from harassment in the course of their employment. As such, it is important to have appropriate policies in place, as well as ensure that staff are appropriately trained on such matters as they know what is acceptable and what is not.

The decision of the Employment Tribunal in Mr A Finn v The British Bung Manufacturing Company Ltd 1803764/2021 can be found here.