British Bung Manufacturing Company Ltd & Anor v Mr A Finn

The Employment Appeal Tribunal dismissed the employer's appeal against an Employment Tribunal finding that the claimant had been harassed related to his sex under section 26 of the Equality Act 2010 and had been unfairly and wrongfully dismissed. The EAT held that the ET had not erred in law or reached a perverse conclusion on the harassment point: the use of the term "bald cunt" was unwanted conduct related to sex because baldness is more prevalent among men and the insult targeted an appearance characteristic closely associated with the claimant's sex. The EAT also upheld the ET's conclusions that the employer had acted in bad faith and with a pre-determined view in the disciplinary process (breaching natural justice), rendering the dismissal unfair, and that objectively the claimant had not committed a repudiatory breach of contract so as to justify summary dismissal for wrongful dismissal.

This is an appeal from a decision of the Employment Tribunal (Leeds) which found that the claimant had been harassed for a reason related to his sex (Equality Act 2010, s26 and s39), had been unfairly dismissed (Employment Rights Act 1996, ss94 and 98) and had been wrongfully dismissed for the employer's purported summary dismissal. The factual background involved a long-serving electrician who was called a "bald cunt" by a colleague in July 2019 and who later presented a written witness statement (prepared with his son) on a West Yorkshire Police witness-statement template during an investigation in April 2021. The employer treated the form of that statement as indicating police involvement and dismissed the claimant for gross misconduct in May 2021 following a disciplinary hearing and a summary internal appeal.

The issues before the EAT were: (i) whether the ET erred in law in treating the insult as harassment related to sex under section 26 of the Equality Act 2010; (ii) whether the ET's finding of unfair dismissal was perverse because the employer had reasonable grounds to dismiss without awaiting the police inquiry and had not pre-determined the outcome; and (iii) whether the ET erred in finding wrongful dismissal because the claimant's conduct objectively amounted to repudiatory breach.

The EAT's reasoning: regarding harassment, the court endorsed a purposive approach to section 26 and agreed with the ET that the insulting reference to baldness was inherently related to sex because baldness is substantially more prevalent among men and the conduct was aimed at the claimant's appearance; the ET had not illegitimately imported an indirect discrimination or disparate-impact test. Regarding unfair dismissal, the EAT accepted the ET's findings that the employer had represented it would await the police investigation but dismissed the claimant two working days later without inviting representations or explaining the change of position, and that the disciplinary opening remarks demonstrated a pre-determined view; these procedural failings justified the conclusion of unfair dismissal. Regarding wrongful dismissal, the EAT held the ET applied the correct objective tests (including consideration of Tullett Prebon) and permissibly concluded the claimant had not intended to abandon performance of the contract; the claimant therefore succeeded on wrongful dismissal. The EAT dismissed the appeal in its entirety.

Appeal dismissed. The EAT upheld the Employment Tribunal's findings that the claimant had been harassed related to his sex (Equality Act 2010, s26), had been unfairly dismissed (Employment Rights Act 1996, ss94 and 98) because the employer acted in bad faith and adopted a pre-determined view, and had been wrongfully dismissed because the claimant's conduct did not amount to a repudiatory breach. The court endorsed the ET's purposive approach to section 26 and its factual findings on procedure and intention.

Appeal to the Employment Appeal Tribunal from the decision of the Employment Tribunal (Leeds) (Employment Judge Brain; members Mr Dorman-Smith and Mr Lannaman). The internal appeal against dismissal by the employer had been dismissed at the workplace appeal stage (letter dated 18 June 2021). No other neutral citations for earlier stages are provided in the judgment.