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UK tribunal holds calling a man bald is sex harassment

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The facts

Tony Finn was employed by beer barrel stopper maker British Bung Company as an electrician between 22 September 1997 and 25 May 2021.

In late July 2019 an altercation between Finn and Jamie King occurred. Finn alleged of that incident that:

“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.’ Fearful for my personal safety I retreated to the nearby office of Ady Hudson, supervisor. Jamie continued his tirade of threats and abuse at the office door.”

Later, Finn claimed he had been called a “fat bald old cunt” by King in that incident.

A further incident on 25 March 2021 occurred in which King again threatened Finn.

Because a subsequent statement was prepared on West Yorkshire Police letterhead paper, Finn was dismissed on the grounds that he had “deliberately provided a witness statement which falsely suggested on its face and by its content, that it had been made to, and taken by, West Yorkshire Police in connection with the investigation of an alleged crime”.

In dismissing Finn with immediate effect, British Bung Company wrote that:

We do not accept your explanation, or that you acted in good faith, or that there was merely an oversight. You did not apologise. On the contrary, you said that you did not think that you had done anything wrong… We are satisfied that your actions amount to gross misconduct justifying your immediate dismissal. In light of your failure to apologise, and insistence that you have done nothing wrong, we are satisfied that it would be impossible to have trust and confidence in you as our employee.”

Finn was dismissed from his employment without notice despite until March 2021 having an unblemished disciplinary record over nearly 24 years of service.

Relevant Law

Section 26 of the Equality Act 2010 provides that:

26 Harassment
(1) A person (A) harasses another (B) if–
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of–
(i) violating B´s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) A also harasses B if–
(a) A engages in unwanted conduct of a sexual nature, and
(b) the conduct has the purpose or effect referred to in subsection (1)(b).
(3) A also harasses B if–
(a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,
(b) the conduct has the purpose or effect referred to in subsection (1)(b), and
(c) because of B´s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.
(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account–
(a) the perception of B;
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
(5) The relevant protected characteristics are–
age;
disability;
gender reassignment;
race;
religion or belief;
sex;
sexual orientation.

Section 40 of the Equality Act 2010 provides that:

40 Employees and applicants: harassment
(1) An employer (A) must not, in relation to employment by A, harass a person (B)–
(a) who is an employee of A´s;
(b) who has applied to A for employment.
(2) The circumstances in which A is to be treated as harassing B under subsection (1) include those where–
(a) a third party harasses B in the course of B´s employment, and
(b) A failed to take such steps as would have been reasonably practicable to prevent the third party from doing so.
(3) Subsection (2) does not apply unless A knows that B has been harassed in the course of B´s employment on at least two other occasions by a third party; and it does not matter whether the third party is the same or a different person on each occasion.
(4) A third party is a person other than–
(a) A, or
(b) an employee of A´s.

In Insitu Cleaning Co Limited v Heads [1995] IRLR, 4, EAT, it was held that a woman had been sexually discriminated against when a manager made a single comment of “hiya, big tits” to her about the size of her breasts. That case arose before the enactment of the law of harassment and therefore had to be brought as one of sex discrimination.

Section 94 of the Employment Rights Act 1996 provides that:

94 The right
(1) An employee has the right not to be unfairly dismissed by his employer.
(2) Subsection (1) has effect subject to the following provisions of this Part (in particular sections 108 to 110) and to the provisions of the [1992 c. 52.] Trade Union and Labour Relations (Consolidation) Act 1992 (in particular sections 237 to 239).

Section 98 of the Employment Rights Act 1996 relevantly provides that:

“98 General
(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show–
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this subsection if it–
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant, or
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment…
(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)–
(a) depends on whether in the circumstances (including the size and administrative resources of the employer´s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.
(5) Where the employee is taken to be dismissed for the purposes of this Part by virtue of section 96, subsection (4)(a) applies as if for the words “acted reasonably” onwards there were substituted the words “would have been acting reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee if she had not been absent from work”

In British Home Stores Limited v Burchell [1980] ICR 3030, EAT, it was held that a threefold test applies. The employer must show that they believed the employee to be guilty of misconduct. The Tribunal must then be satisfied that the employer had in mind reasonable grounds upon which to sustain that belief and at the stage at which the belief was formed on those grounds, the employer had carried out as much investigation into the matter as was reasonable in the circumstances. The employer need not have conclusive direct proof of the employee’s misconduct. A genuine and reasonable belief, reasonably tested, will suffice.

In Khanum v Mid Glamorgan Area Health Authority [UK EAT 1979] that a disciplinary hearing must fulfil three basic requirements of natural justice. These are firstly that the person should know the nature of the accusation against them, secondly, that they should be given an opportunity to state their case and thirdly that the ‘domestic tribunal’ (ie the employer) should act in good faith.

Tribunal’s decision
Employment Judge Brain

The Tribunal panel, headed by Employment Judge Brain, found that Mr King did call Finn a “bald cunt” and that the word “old” did not feature. The Tribunal also found that King did threaten Finn with physical violence, rejecting King’s denials:

“We can attach no significant weight to Mr King’s version of events. Having received a warning from the respondent about the July 2019 incident it is unsurprising that he gives an account in which effectively he denies the use of threatening words or behaviour towards the claimant.”

The Tribunal found that the reason for the dismissal was Finn’s conduct in presenting British Bung Co with a witness statement on West Yorkshire Police headed notepaper and which gave the appearance of matters having become a police matter. The Tribunal was satisfied that the health and safety reason and the protected disclosures of the incidents were not the reasons for the dismissal.

Because Finn was led to believe that no decision would be made by British Bung Co pending hearing from West Yorkshire Police with the outcome of their enquiries, only for his employer British Bung to dismiss him  only two working days later, good faith was lacking in the disciplinary hearing which was not cured on its internal appeal.

The reason why this decision made headlines was due to the Tribunal’s finding that Mr King‘s comment amounted to harassment under the Equality Act 2010 because it targeted a protected characteristic, namely his sex:

“Plainly, some words or phrases would clearly be related to a protected characteristic. Where the link is less obvious then Tribunals may need to analyse the precise words used, together with the context, in order to establish whether there is any negative association between the two.

In our judgment, there is a connection between the word “bald” on the one hand and the protected characteristic of sex on the other. Miss Churchhouse was right to submit that women as well as men may be bald. However, as all three members of the Tribunal will vouchsafe, baldness is much more prevalent in men than women. We find it to be inherently related to sex. (In contrast, we accept that baldness affects (predominantly) adult males of all ages so is inherently not a characteristic of age)…It may be thought that such a remark is inherently related to sex. However, a similar comment may be made to men with the condition of gynaecomastia. Upon Miss Churchhouse’s analysis, therefore, were a complaint of harassment related to sex to be brought today by an individual in the position of the claimant in the Insitu case, it would fail upon the basis that it is possible for men with that medical condition to be subjected to the same remark (just as bald women may be subject to comments such as those made by Mr King) albeit that far more women than men will be liable to such harassing treatment.

  1. In our judgment, this is not the correct analysis and that the proper analysis is to approach matters purposively. The object of the 2010 Act after all is to proscribe harassment within the workplace. It is much more likely that a person on the receiving end of a comment such as that which was made in the Insitu case would be female. So too, it is much more likely that a person on the receiving end of a remark such as that made by Mr King would be male. Mr King made the remark with a view to hurting the claimant by commenting on his appearance which is often found amongst men. The Tribunal therefore determines that by referring to the claimant as a “bald cunt” on 24 July 2019 Mr King’s conduct was unwanted, it was a violation of the claimant’s dignity, it created an intimidating etc environment for him, it was done for that purpose, and it related to the claimant’s sex.”

The complaint of harassment related to sex arising out of the incident of 24 July 2019 therefore succeeded.

The claims that Finn was unfairly dismissed upon the grounds that he made the disclosures of the incidents of July 2019 or 25 March 2021, or for the health and safety reason, failed. However, the claim that Finn was unfairly dismissed pursuant to sections 94 to 98 of the 1996 Act succeeded because of the lack of good faith by British Bung Co in respect of the manner in which Finn was dismissed.

Conclusion

The notorious story in the judgment was only a relatively small part of the judgment. This was a complex dispute surrounding the dismissal of a long-serving employee who had been insulted and threatened by another employee for writing a statement on police letterhead. Many of the employee’s claims were rejected, and the most significant part of the judgment in his favour was the lack of good faith in the process by the employer British Bung Co in dismissing him.

Moreover, this was not a case where it was found that there was anything inherently sexual about the ‘bald’ comment. The media reporting this as a case of sexual harassment is a bit of a beat-up. It would be more accurate to say that this was a case of ‘sex harassment’ because Finn was taunted on the lack of hair on his head, which was related to the fact he was a man. The impugned conduct by a member of the same sex of commenting on his baldness while insulting him falls well short of the Australian definition of sexual harassment.

Supreme Court banishes Satan from Queensland classrooms

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The Queensland Supreme Court has in effect refused to allow the Noosa Temple of Satan to provide religious instruction to children.

The facts

The Noosa Temple of Satan is an unincorporated association preaching Satanism in Queensland.

The applicant, Trevor Bell, is a member of  the Noosa Temple of Satan.

In March 2021, Bell and Robin Bristow, a fellow member of the Temple, applied for approval to deliver Satanic religious instruction at four Queensland State schools. Their application was refused on the ground that the Temple “has no entitlement to provide religious instruction” because it “is not a religious denomination or society for the purposes of” s 76(1) of the Education Act.

Bell sought a statutory order of review in relation to that “decision” under Part 3 of the Judicial Review Act 1991 (Qld) and, further, orders setting the “decision” aside along with a declaration to the effect that the Noosa Temple of Satan is a religious denomination or society for the purposes of s 76 of the Education Act.

Relevant Law

Section 76 of the Education (General Provisions) Act 2006 provides that:

76 Religious instruction in school hours
(1) Any minister of a religious denomination or society, or an accredited representative of a religious denomination or society, which representative has been approved by the Minister for the purpose, shall be entitled during school hours to give to the students in attendance at a State school who are members of the denomination or society of which the person is a minister or the accredited representative religious instruction in accordance with regulations prescribed in that behalf during a period not exceeding 1 hour in each week on such day as the principal of that school appoints.
(2) Instruction in accordance with a regulation may be given in State primary and special schools during school hours in selected Bible lessons.
(3) A separate reading book shall be provided for such purpose.
(4) Instruction of a kind mentioned in subsection (2) is not to include any teaching in the distinctive tenets or doctrines of any religious denomination, society or sect.
(5) Notwithstanding anything in this section, any parent of a student in attendance at a State school may withdraw such student from all religious instruction in such school by notification in writing to the principal that the parent desires the student to be so withdrawn.
(6) The provisions pursuant to this section shall not apply or extend to students enrolled in the preparatory year at a State school.

Section 4 of the Judicial Review Act 1991 provides that:

In this Act—
“decision to which this Act applies” means—
(a) a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion); or
(b) a decision of an administrative character made, or proposed to be made, by, or by an officer or employee of, the State or a State authority or local government authority under a non-statutory scheme or program involving funds that are provided or obtained (in whole or part)—
(i) out of amounts appropriated by Parliament; or
(ii) from a tax, charge, fee or levy authorised by or under an enactment.

Section 20 of the Judicial Review Act 1991 provides that:

20 Application for review of decision
(1) A person who is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision.

In The Church of the New Faith v The Commissioner of Pay-Roll Tax (Vic), Mason ACJ and Brennan J of the High Court held that:

“… for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.”

In the same case, Wilson and Deane JJ held that belief in the supernatural was “one of the more important indicia of a ‘religion”’ and that another is “that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance”.

In Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99, the High Court by a majority held that academic decisions of a university, such as whether to enrol or confer a degree were not subject to judicial review as such decisions were not “under an enactment” under the Judicial Review Act 1991.

In Lyons v Queensland [2016] HCA 38; (2016) 259 CLR 518, Gageler J of the High Court held that the entitlement for administrative review does not allow for any “administrative choice”; the requirements are “either met or not met independently of any action, inaction, knowledge or opinion of a person administering” the relevant Act.

Queensland Supreme Court decision

Justice Martin Burns considered that as s 76(1) of the Education Act does not confer any decision-making powers, it does not found a “reviewable decision” under the Judicial Review Act 1991.

Burns J held that s 76(1) does not allow for any “administrative choice” as the requirement of there being a religious denomination or society was not met, independently of any action, inaction, knowledge or opinion of a person administering the Education Act.

 

On the issue of whether the Temple is a religious denomination or society, Burns J indicated he was most unimpressed with the Application:

[46] Apart from Mr Bell and Mr Bristow, only one other person (the graphic designer) was identified by the evidence as a member of the Temple. Reliance on Facebook followers and page likers as members of the Temple and therefore adherents is an absurd notion. Similarly, reliance on the sending by three parents of emails to school principals as some measure of support for the assertion that the Temple was comprised of some followers who were interested in Satanism is unsound because there is no evidence that any of those parents were members of the Temple.
[47] The Temple has no genuine connection to anything pertaining to religion. There is certainly no evidence of a shared belief in a supernatural being, thing or principle, let alone canons of conduct to give effect to such a belief. To the extent that Mr Bell submitted that the Temple amounted to a “religious society”, no common element pertaining to or concerned with a religion (or religions) was in evidence. Indeed, as best I can ascertain on the evidence, the identified members of the Temple are wholly irreligious. None of this should be surprising because the Temple was not formed (and nor has it been conducted) as a religious denomination or society; the sole reason for its existence was (and remains) to push a political barrow.
[48] It was therefore concerning to wade through what was advanced about the Temple to the school principals, the Deputy Director-General and this court. For example, it was claimed in the Forms that the “Satanic Religious Instruction” to be provided to students will include “information about the religion of Satanism, including belief in Satan as a supernatural being, the canons of conduct and the tenets”. In Mr Bristow’s letter to the Deputy Director-General of 12 March 2021, the claim was made that “[w]e are a religion” and that the Temple was a “church” with a “religious purpose”. In his affidavit, Mr Bristow deposed that the Temple was “devoted to the education, practice, celebration and promotion of the religion of Satanism” and that the “Temple’s purpose” included the promotion of a “belief in Satan as a supernatural spirit” and a “commitment to follow the example of Satan”. Then, Mr Bristow affirmed that the “supernatural belief of Satan that the Temple aims to promote is the Satan of the Bible” and that “[t]his is the supernatural spirit we will preach to our students in religious instruction classes.”
[49] Aided by Mr Bell and perhaps another, Mr Bristow’s attempt to obtain approval to deliver “Satanic” religious instruction in State schools was nothing more glorified than a base political stunt. His persistence with that attempt through the medium of this proceeding has resulted in a deplorable waste of the resources of the State which had to be marshalled in opposition to the relief sought and the needless allocation of court time and resources to deal with it.

The application for judicial review was dismissed.
Bristow was directed to show cause within fourteen days why a copy of the affidavits read on the hearing of the application, the exhibits tendered at that hearing, the transcript of his oral evidence at that hearing and the judgment should not be provided to the Director of Public Prosecutions (Qld) or the Commissioner of the Queensland Police Service to consider whether a prosecution should be commenced in relation to the affidavit he affirmed on 13 May 2021 and/or the evidence he gave at the hearing.

 

Conclusion
This decision of the Supreme Court of Queensland has in effect prevented the Noosa Temple of Satan from teaching its beliefs to children in Queensland. The consequence of this decision is that exorcisms on Queensland kids will thankfully be avoided.

Whether Robin Bristow gets prosecuted for his evidence remains to be seen.

Ghislaine Maxwell’s conviction for sex trafficking upheld

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Jeffrey Epstein’s long time girlfriend Ghislaine Maxwell has had her sex trafficking conviction upheld.

Judge Alison Nathan of the United States Court of Appeals for the Second Circuit upheld Maxwell’s conviction on transporting a minor with the intent to engage in criminal sexual activity and sex trafficking of minors. However, Judge Nathan ruled that the three conspiracy counts Maxwell was convicted of were “multiplicitous,” and sentencing the convicted sex trafficker on all of them would violate the Fifth Amendment’s Double Jeopardy Clause.

Last month, Judge Nathan had denied Maxwell’s request for a new trial after a juror had disclosed to other jurors during jury deliberations that he had been sexually abused as a child and had not revealed that fact in response to questions about prior sex abuse posed in a written questionnaire.

Maxwell was accused of recruiting and grooming four teenagers for Epstein between 1994 and 2004. Epstein committed suicide in a Manhattan jail cell as he awaited trial on sex abuse charges of his own.

Maxwell was found guilty in December by a 12-person New York jury of five of the six counts she was facing, including sex trafficking.

Maxwell is due to be sentenced in June.

Douglas Winning refused High Court leave to appeal against corruption conviction

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The facts

At about 1.00 am on Sunday 17 February 2019, police were patrolling in Rockhampton when they saw a car driving erratically and knocking over a street sign. They pulled the car over and found the driver was local solicitor Douglas “call me Doug” Winning.

A true man of style, Winning was wearing only a pair of shorts. His vehicle had sustained damage on the bonnet and a front tyre. When asked that he had been drinking, Winning nominated the amount as “a bottle of rum”, explaining that he had had a sleep since finishing it. He was slurring his words. He twice said “You’re not going to pinch me”.
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Chris Dawson refused High Court leave to appeal for a permanent stay

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Former high school teacher and rugby league player Chris Dawson yesterday was refused leave to appeal against the NSW Court of Appeal’s refusal to grant a permanent stay of his murder charge.

Dawson is accused of having murdered his wife Lynette Dawson 40 years ago. Lynette, 33, disappeared from their Bayview home on Sydney’s northern beaches in January 1982, leaving behind their two young daughters Shanelle and Sherryn, then aged four and two.
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British barrister beats woke Bar Standards Board

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“The ethos of service and duty that used to underpin so many professions often seems to have been replaced with a claim to moral leadership by the better-educated.”

Head, hand & heart: The struggle for dignity and status in the 21st Century David Goodhart, 2020, Allen Lane, p17

The facts

In 2021, British barrister Jon Holbrook was investigated by the Bar Standards Board (BSB) over a series of social-media posts. 17 were thrown out. It decided that one of the 18 tweets in question constituted a breach of professional conduct.
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Race hate hoaxer Jussie Smollett gets appeal bail

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In December, American actor Jussie Smollett was found guilty by a jury of falsely reporting a hate crime against himself.

He claimed two racist Trump supporters wearing MAGA hats beat him up. It turned out he had paid two Nigerian brothers to stage the whole thing so that he could pretend to be a victim of a racist and homophobic hate crime.
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Public Trustee of Queensland investigated for high fees and financial mismanagement

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“The nine most terrifying words in the English language are: I’m from the Government, and I’m here to help.”

President Ronald Reagan, AUGUST 12, 1986

The facts

The Public Trustee of Queensland is a public body charged with managing the finances of some of the most vulnerable members of the community, including those lacking capacity and prisoners.
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District Court stays claim because of Australian Financial Complaints Authority’s bureaucratic bumbling

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Westpac’s social responsibility department reacts to the banking Royal Commission.

 

“The nine most terrifying words in the English language are: I’m from the Government, and I’m here to help.”

President Ronald Reagan, AUGUST 12, 1986

It is well known that many public bodies these days are obsessed with political correctness and identity politics, and spend a lot of their time fussing on topics such as equity, diversity, inclusion, harmony days, ‘unconscious bias’, and the like. Once can only imagine that they hold regular meetings where they talk about topics such as their gender pronouns, paleo pear and banana bread, and what a relief that in a few months time the Morrison federal government will be replaced by a Labor-Greens Coalition, but how the ideal would be a Greens Government with Adam Bandt as Prime Minister and socialism being tried once again.
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