British Bung Manufacturing Company Ltd & Anor v Mr A Finn

For harassment related to sex under Equality Act 2010, unwanted conduct need not concern a characteristic exclusive to one sex. The statutory question is whether, in its context, the conduct was related to sex. A feature more prevalent among one sex may establish that connection.

An employer which tells an employee that it will await an external investigation before deciding discipline must act fairly and openly if it changes course. Dismissal without notice or an opportunity to respond may amount to bad faith and unfairness. Wrongful dismissal remains a separate, objective contractual inquiry into whether the employee’s conduct objectively showed an intention to abandon the contract.

The Claimant, an electrician with long service, was summarily dismissed after presenting at an investigation meeting a statement prepared on a West Yorkshire Police template. The employer concluded that the document was intended to suggest a police investigation and that trust and confidence had been destroyed.

The Leeds Employment Tribunal upheld claims of harassment related to sex, unfair dismissal and wrongful dismissal. It found that a director had called the Claimant a “bald cunt”; that the employer had promised to await the police investigation but dismissed before its outcome; and that the dismissal decision had been pre-determined. It also found that the Claimant’s conduct was not objectively repudiatory.

The employer and the director appealed on the sex-harassment finding, unfair dismissal, and wrongful dismissal.

1. Appeal dismissed. The Tribunal made no error of law and reached no perverse conclusion in upholding the three claims.

2. Under section 26(1) of the Equality Act 2010, conduct may be related to sex although the characteristic invoked is not exclusive to one sex. The Tribunal was entitled to find that baldness was more prevalent among men, that the abusive remark was more likely to be directed at a man, and that it was therefore inherently related to sex in its context. The employer’s proposed exclusivity requirement was unsupported by authority and inconsistent with the provision’s purpose. The broader contextual inquiry described in Bakkali supported that conclusion.

3. The unfair-dismissal finding rested independently on bad faith and pre-determination. Having told the Claimant that it would await the police investigation, the employer dismissed him without awaiting it, explaining its change of approach, or seeking representations. The potential limited relevance of that investigation did not remove the separate duty to act fairly and openly. The Tribunal was also entitled to regard the disciplinary introduction, which asserted that the document had been premeditated intimidation, as demonstrating a concluded view. Questions asked later did not make that finding perverse.

4. The Tribunal correctly distinguished the statutory unfair-dismissal inquiry from the contractual wrongful-dismissal inquiry. For wrongful dismissal, it was required to decide objectively and contextually whether the Claimant’s conduct clearly showed an intention to abandon or refuse to perform the contract. It was entitled to find that the statement was intended to assist the investigation and preserve the employment relationship, and that there was no repudiatory breach.

• Employment Appeal Tribunal: Appeal dismissed: [2023] EAT 165.
• Leeds Employment Tribunal: Upheld claims of harassment related to sex, unfair dismissal and wrongful dismissal. No citation was stated in the judgment.