Two recent decisions from the employment tribunal illustrate the breadth of the legal definition of unlawful harassment related to sex. While it needs to be related to the sex of the person being harassed, it doesn’t need to be sexual in nature. To that extent the commonly used expression “sexual harassment” to refer to this kind of harassment can lead to misunderstandings.
The bald electrician
In one of these rulings, the claimant was working as an electrician for a small manufacturing company. He was insulted and threatened by his shift supervisor, who used “bald” as an intensifier for a commonly-used obscenity.
The tribunal concluded that the use of the word bald connected the insult with the claimant’s sex, in the context of behaviour which satisfied the other elements of the definition of harassment. That was because while both sexes could experience baldness, most bald people were men.
The teacher returning from maternity leave
The other decision was about a teacher at an academy trust who needed to express milk at lunchtime following her return from maternity leave. Despite repeated requests, her employers did not provide her with a room in which to do this, leaving her with no option but to express milk either in her car (parked in the school grounds) or in the school toilets.
In this case, the tribunal decided that by failing to allocate the claimant a room in which to express milk, the employers had engaged in unwanted conduct which related to her sex, which had the effect of creating a degrading and humiliating environment for her. If she expressed milk in her car, there was a risk she could be seen doing so by pupils. If she used the toilet, given her limited lunch hour, she had no alternative but to eat her lunch there too. Her claim for sex-related harassment therefore succeeded, though for technical reasons the tribunal dismissed her alternative claim for indirect sex discrimination.
In recent years employers have, for understandable reasons, focused their efforts at eliminating sexually-based misconduct in the workplace. These recent cases remind us that unlawful harassment related to sex covers a much wider range of behaviour than that.