| HR & EMPLOYMENT LAW
Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
Watch Out for Appearance-based Insults as Tribunal Finds Calling Employee Bald was Sex-related Harassment
You may have seen press reports about an employment tribunal recently holding that it was sexual harassment, equivalent to commenting on the size of a woman’s breasts, to call an employee bald. The decision was, in reality, more nuanced than this. So what did the tribunal panel (who were, by their own admission, three bald men) really say and how can you avoid falling foul of a similar ruling and all the associated bad publicity?
What Happened?
In Finn v The British Bung Manufacturing Company and King [2022] 1803764/2021, there had been several altercations between Mr Finn and his supervisor, Mr King. These culminated in Mr King calling Mr Finn a ‘bald c***’. Following an investigation, Mr Finn was (for rather complicated reasons) dismissed for misconduct.
Mr Finn successfully claimed harassment on the grounds of sex. The tribunal concluded that the test for harassment in the Equality Act 2010 had been met because ‘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 panel said there was a connection between the word ‘bald’ and the protected characteristic of sex. Although they accepted that women can be bald, they held that baldness is much more prevalent in men than women. It was therefore much more likely that a person on the receiving end of an insult about baldness would be male.
Similarly, a man with gynaecomastia can have enlarged breasts but this will not stop a woman whose manager comments on the size of her bosom successfully claiming harassment on the grounds of sex.
Mr Finn also claimed age discrimination but this claim failed. The tribunal ruled that baldness can affect adult males of all ages and is not an inherently age-related characteristic.
Why Did the Tribunal Reach this Decision?
In some ways, this is a surprising decision. Swearing at an employee under your supervision would seem to be more offensive than calling him ‘bald’. However, the tribunal accepted that ‘industrial language was commonplace on this West Yorkshire factory floor’ and it was the personal remark about Mr Finn’s appearance that had ‘crossed the line’.
A key reason for the decision is likely to be that there’s no law against bullying as such. Intimidation or insults will only be unlawful under the Equality Act if they are related to someone’s sex, race, sexual orientation and so on. This ruling has perhaps stretched the definition of sex-related harassment to its limits. However, the tribunal clearly felt Mr King had behaved unacceptably and Mr Finn, who had 24 years’ service, deserved justice.
How to Avoid a Similar Claim
It’s sensible to include general wording in your equality, anti-harassment or dignity at work policy about the importance of treating colleagues with respect. When you next update your policy, you might add making offensive or unwanted comments about someone’s appearance as an example of unacceptable conduct. This will reduce the risk of employees hurling insults that, even if they’re not obviously linked to a protected characteristic, might land you a tribunal. You must also train employees regularly in your rules and enforce your policy by acting swiftly and reasonably on complaints.
Another point which this ruling highlights is that you should not ignore allegations of sex-related harassment, even when the dispute is between two people of the same sex.
| HEALTH & SAFETY
Michael Ellerby, Editorial Board Member, Health & Safety Adviser and Risk Assessment & Compliance |
Make these Pre-user Ladder and Stepladder Checks to Keep Your Workers Safe
Falls from height are still one of the main causes of serious injury and death in the workplace and, while ladders and stepladders are useful and practical tools for accessing heights, they can be dangerous if not checked thoroughly before use. As ever, risk assessment is at the centre of modern safety management. The choice of access equipment should be determined by an assessment of the task, and not based purely on convenience.
There have been suggestions over the years that ladders have been banned by the Health and Safety Executive (HSE). While this is not accurate, the HSE does require employers to consider the most appropriate means of access to heights for the task in question. Ladders may be convenient, but safer alternatives should be considered (such as tower scaffolds or podium steps).
If a ladder if the right tool for the job, it’s important to select the right one and ensure it is in good condition. The size, type and design of ladder should be considered carefully. Think about:
- The height of the activity/ladder.
- Type (ladder, stepladder, etc).
- Material (usually aluminium or GRP).
Who Should Use Ladders
Restrict the use of ladders to trained persons. Ideally, have a list of trained, authorised users. You may need to secure ladders in a location that prevents unauthorised users from easy access (such in a locked room, or where ladders are chained and locked).
New Standards for Ladders and Stepladders
Nearly all ladders and stepladders that can be bought now are to the EN131 standard for portable steps and ladders. Check your ladders and ensure that they are of the right standard. The older standards of BS2037 and BS1129 have been withdrawn. Ladders originally made to these standards (prior to their withdrawal) may still be used (subject to following user instructions and guidance on safe use).
Ladder Register
So that you know what equipment you have, and that it is being inspected regularly, create a ladder (or access equipment) register or inventory. This should be a simple list which includes:
- Asset number.
- Location.
- Description.
- Inspection status (and frequency).
What Should be Checked
Core items that should be checked before use include:
- The stiles: ensure these are not bent or damaged as the ladder could buckle or collapse.
- The feet of the ladder: make sure these are present and are in a good and clean condition. Without the feet, or if they are worn or damaged, the ladder could slip while in use.
- Cleanliness of the feet: check that the feet are not contaminated from previous work surfaces. Oil, grease and dirt can cause the ladder to slide when used.
- The rungs: these should be unbent and firmly fixed. If they are bent, worn, missing or loose, the ladder could fail when used.
- Locking mechanisms: check that any locking mechanisms work properly and are secure in use and fully engaged. Any loose, damaged or failing items may lead to the ladder failing or opening in use.
- The stepladder platform: ensure it is in good condition, without defects, and that it seats properly. Split, damaged or buckled platforms increase the risk of the user falling from the stepladder while in use, and may cause it to become unstable.
- The steps or treads on stepladders: these should be clean and in good condition, without any defects or damage. Contaminated surfaces may be slippery when in use and the damaged steps may cause the user to stumble or fall.
If a ladder does not pass a safety inspection:
- Remove it from service to a secure location.
- Arrange its disposal or repair.
- Arrange its replacement if required.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Cycle-to-Work Exemption Returns to Pre-Covid Rules
Employees who make use of cycle-to-work schemes or who can use an employer-provided cycle are able to benefit from a tax exemption as long as the associated conditions are met. During the Covid-19 pandemic, the rules were relaxed. The easement came to an end on 5 April 2022. What do employees now have to do to access the exemption, and what does the ending of the easement mean for employees who have continued to work from home?
The Exemption
The exemption for employer-provided cycles and cycling safety equipment now only applies if the following conditions are met:
- There is no transfer of property in the cycle or the safety equipment.
- The employee uses the cycle or equipment mainly for qualifying journeys.
- The cycles and/or equipment (as the case may be) are made available generally to the employer’s employees.
Qualifying journeys are those between the employee’s home and the workplace, but also include journeys on a normal working day between the workplace and shops or other amenities which are not more than 10 miles from the workplace.
HMRC treat the ‘main use’ test as being met if the cycle (and/or equipment) is used for qualifying journeys at least half of the time. However, they do not require proof that this is the case, and will accept the test as being met unless there is clear evidence that less than half of the use of the cycle is for qualifying journeys.
The Easement
Where employees were required to work from home as a result of the Covid-19 pandemic, their ability to meet the ‘main use’ requirement was compromised. In recognition of this, HMRC announced that the need to pass this test would be lifted for employees who, on or before 20 December 2020, had joined an employer-provided cycling scheme and received an employer-provided cycle or cyclist’s safety equipment.
Such employees would be able to continue to benefit from the exemption until 5 April 2022 without the need to use the cycle or equipment for qualifying journeys for at least half of the time.
Employees who joined the scheme after 20 December 2020 had to meet the qualifying journey test from the outset, even prior to 6 April 2022.
The Current Position
The statutory rules apply to all employees from 6 April 2022 onwards, and the exemption will only be forthcoming where the employee uses the cycle for qualifying journeys at least 50% of the time.
Where an employee has remained working from home post-pandemic, they may struggle to meet the qualifying use test, particularly if they rarely attend the workplace and are a leisure cyclist.
If the test is not met, provision of the cycle is a taxable benefit, taxed by reference to its annual value. This is 20% of the market value of the cycle when first made available to an employee. While the tax hit for the employee will not be significant (for a £500 bike, the tax cost will be £20 a year for a basic rate employee and £40 a year for a higher rate employee), administering it will create work for the employer.
Alternatively, the employer may prefer to transfer ownership of the cycle to the employee. As long as the employee pays at least the current market value, there will be no tax to pay on the transfer.