Employment Newsletter - Issue 22

28th July 2022

Employment Newsletter - Issue 22

Focus On? Case law update

In this edition, we will be covering:

  1. Finn v The British Bung Manufacturing Company Limited and Another 
  2. Rodgers v Leeds Laser Cutting Limited
  3. Pubbi v

Legal Update #1 –  Finn v The British Bung Manufacturing Company Limited and King.

In this case, the ET found that calling somebody bald amounted to harassment in relation to the protected characteristic of sex.  

Mr Finn was employed by the first respondent, The British Bung Manufacturing Company Limited, as an electrician. The Second Respondent, Mr King, was Mr Finn’s supervisor.

In July 2019, an altercation arose between Mr Finn and Mr King, resulting in Mr Finn calling Mr King “a bald *expletive*”. He also threatened violence against Mr Finn. There was another altercation in March 2021 and at a subsequent investigation meeting, Mr Finn produced a witness statement on West Yorkshire Police headed notepaper, giving the false impression that the police had become involved in the matter. This resulted in Mr Finn being dismissed.

Following his dismissal, Mr Finn brought numerous claims, including unfair dismissal and harassment in connection with his sex under section 26(1) Employment Rights Act 2010. The ET considered that it was just and equitable to allow the extension of time to hear the harassment claim (despite the incident occurring in 2019) as it was a matter in the public interest.

The definition of harassment requires unwanted conduct relating to a relevant protected characteristic under the Equality Act 2010, which has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee.

The Tribunal concluded that the test was satisfied. The ET found that the conduct was unwanted because the comments were personal to the Claimant’s appearance. The ET stated that there was “little doubt that being referred to in this pejorative manner was unwanted conduct”. Although they considered that ‘industrial language’ was commonplace on the factory floor, they found Mr King had “crossed the line”.

The ET found that the comment was related to protected the characteristic of sex as a man was more likely to be on the receiving end of such a comment due to the fact that baldness is more prevalent in men than women.

The ET also concluded that the comment had the purpose of violating Mr Finn’s dignity and creating an intimidating or hostile, degrading, humiliating or offensive environment, as Mr King had himself admitted his intention was to threaten the Claimant and insult him. 

The ET interestingly did not pay much attention to the context in which the words were spoken – an argument between two colleagues on a factory floor. The ET also dismissed that Mr Finn could have been discriminated against based on his age, despite the fact that baldness is more prevalent in older men.

It may be that the most insulting element of the conduct was in fact the expletives and not the word ‘bald’. However, without the use of the word ‘bald’ the Claimant would not have been able to bring a claim for harassment. This case draws attention to the fact that a claim for harassment or bullying can only be brought under Equality Act 2010, and in order to do so successfully, the conduct must relate to a protected characteristic. However, employers should be wary that tribunals may be interpret the legislation broadly for a deserving Claimant where there are very few options for legal recourse.

This case serves as a reminder that any offensive remarks made in the workplace could potentially give rise to an employment tribunal claim. It is therefore advisable that employers ensure they have a suitable bullying and harassment policy in place. 

Legal Update #2 – Rodgers v Leeds Laser Cutting Limited

The EAT decision in Rodgers v Leeds Laser Cutting Limited concerned whether the dismissal of an employee who refused to return to work during the pandemic because of health and safety concerns amounted to automatic unfair dismissal.

Mr Rodgers worked as a laser operator and was required to attend work during the pandemic because he did not have the ability to work from home in his role. The warehouse where Mr Rodgers worked was large (approximately half the size of a football pitch) and there was approximately five people there at any one time.

At the start of lockdown, Mr Rodgers stopped attending work because he had a vulnerable child at home. Although he obtained a six day isolation note from NHS 111, he did not attend work for a total of three weeks or get in touch with his employer. As a result this, Mr Rodgers was dismissed.

Mr Rodgers subsequently brought a claim under s.100(1)(d) Employment Rights Act (ERA) 1996 for automatic unfair dismissal and argued that he reasonably believed he was in serious and imminent circumstances of danger which he could not have been reasonably expected to avert.

The EAT concluded that the dismissal was not automatically unfair because the Claimant’s decision to not attend work was not directly linked to his workplace’s conditions, but instead general concerns about Covid-19 and the pandemic. On that basis, Mr Rodger’s belief that the workplace presented a serious and imminent risk was not reasonable.

Although the judge found that it was not necessary for the circumstances of danger to be caused by the workplace, he stated “the fact that the Claimant had genuine concerns about the Coronavirus pandemic, and particularly about the safety of his children, did not mean that he necessarily had a genuine belief that there were serious and imminent circumstances of danger… that prevented him from returning to work”. In reaching this conclusion, the EAT considered the following factors:

  • The workplace was large and few people worked in it
  • The Claimant remained at work from the date of the announcement of lockdown on 24 March 2020 until he left at his normal time on 27 March 2020
  • The Claimant could generally maintain social distancing at work
  • The Claimant had not asked for a mask even though they were available
  • The Claimant worked in a pub during lockdown
  • The Claimant drove to hospital when he was supposed to be self-isolating

Although the claim was unsuccessful in this case for the above reasons, it is evident that Claimants are able to engage s.100 (1)(d) of the ERA 1996 if they have a reasonable belief in a serious and imminent danger outside of the workplace, and this could include circumstances such as the Covid-19 pandemic.

Legal Update #3 - Pubbi v

In this case, the EAT upheld the tribunal’s decision that a financial consultant was not unfairly dismissed by (an estate agency) for failing to disclose his bankruptcy.

The Claimant had to declare bankruptcy after a period of unpaid sickness absence. He did not inform his employer of this, but a member of the HR team discovered it on Google. He was dismissed for gross misconduct following an investigation and disciplinary hearing for failing to inform them that he had been declared bankrupt. The Claimant brought a claim for unfair dismissal.

Your-Move did not have any express term or policy in place requiring the Claimant to disclose his bankruptcy and so the main issue at stake for the tribunal to consider was whether it was reasonable for Your-Move to argue that the Clamant should have appreciated himself that he was expected to disclose such a thing and that he had purposely not done so. The tribunal found that Your-Move was entitled to view this behaviour as misconduct warranting dismissal given the Claimant’s experience of the financial industry. The EAT upheld the ET’s reasoning.

This case serves as a helpful reminder that staff handbooks, policies and/or disciplinary rules should account for specific requirements in the relevant sector of work which employees are expected to abide by. It is also advisable to review contracts and disciplinary policies to identify if bankruptcy is listed as a ground for summary dismissal.


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