Calling someone bald could equal harassment – how employers can protect themselves

A Sheffield Employment Tribunal has ruled that calling someone bald could amount to harassment related to sex.

Stacey Cox, director and head of employment law and HR services at Wake Smith Solicitors looks at the case and its findings and its implications for employers.

• The case
• What does the law say?
• What can employers do to protect themselves from this type of liability?

The case

An employment tribunal recently found in the case of Mr A Finn v The British Bung Manufacturing Company Ltd and Mr J King that directing unwanted comments towards colleagues such as calling them a “bald c***” could be classed as harassment related to sex under the Equality Act 2010.

The claimant, Mr Finn, worked at The British Bung Manufacturing Company Limited as an electrician for nearly 24 years. On 24 July 2019, there was an altercation with another staff member, Mr King, resulting in Mr King threatening physical violence towards Mr Finn and calling him a “bald c***”.

Mr Finn brought a claim under section 26 of the Equality Act 2010 for harassment related to sex against both against his employer and Mr King. Mr Finn also brought several other claims against both his employer only and Mr King, but this article concerns the harassment related to sex claim.

What does the law say?

Harassment is defined in the Equality Act as being unwanted conduct related to a protected characteristic which has the purpose or effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

The tribunal’s reasoning is best understood by breaking down the definition and considering it against their judgement.

“Unwanted conduct”

The tribunal were more than satisfied that being called a “bald c***” was unwanted conduct as far as Mr Finn was concerned.

They acknowledged that whilst it was common place for industrial and strong language to be used in this workplace, Mr King had crossed the line by making personal remarks to Mr Finn about his appearance.

The fact that Mr Finn didn’t complain about the use of strong language towards him other than the word “bald” demonstrated that he was particularly insulted by it making the conduct unwelcome and uninvited and therefore unwanted.

“Which has the purpose or effect of violating a person’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment”

The tribunal then considered the purpose, or effect, the unwanted conduct had. They felt that it would be hard to conclude anything other than that Mr King uttered those words to Mr Finn with the purpose of violating his dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

Mr King himself even admitted that he said those words with the intention to threaten and insult Mr Finn. Because of this, the tribunal didn’t need to consider whether it was reasonable for Mr Finn to feel like his dignity had been violated or whether it was reasonable for him to feel like an intimidating, hostile, degrading, humiliating or offensive environment had been created. The intentions of Mr King were clear enough.

“And is related to a protected characteristic”

Mr Finn argued that the protected characteristic concerned here was that of sex, meaning gender.

The link between the unwanted harassing words and the protected characteristic was not instantly clear however, and required the tribunal to analyse the precise words used, together with the context, to establish whether there is any negative association between the two.

The tribunal were content that, whilst both men and women can be bald, baldness is much more prevalent in men than woman, and therefore baldness is inherently related to sex.

They reasoned that the person on the receiving end of the remark such as that made by Mr King would be male and that Mr King made the remark with a view to hurting Mr Finn by commenting on an appearance trait, which is often found amongst men.

What can employers do to protect themselves from this type of liability?

Cases like this should reinforce the need for employers to have clear standards of behaviour and robust equal opportunities and anti-harassment and bullying policies and procedures in place.

Employers should also ensure their employees are aware of, and understand, these policies and procedures and undergo regular training.

This will help employers to show that they have taken all reasonable steps to prevent harassment from happening and thus protect themselves from liability.

This case may well be appealed to the Employment Appeal Tribunal so it will be interesting to see whether the tribunal’s reasoning is followed if it is.

Regardless, this case serves as a useful reminder that harassment doesn’t always involve sexual harassment, and can include harassment based on gender.

For further information on robust equal opportunities, anti-harassment and bullying policies and procedures plus training sessions contact Stacey Cox at Wake Smith Solicitors on 0114 224 2087.

Find out more about our employment services.

Published 24/05/22