Employment Appeal Tribunal says calling a colleague ‘bald’ can amount harassment related to sex

Background

The claimant was a long-serving electrician with the respondent manufacturing company in the brewing industry. He was dismissed without notice on 25 May 2021.

At the end of July 2019, there was a heated discussion between the claimant and one of his colleagues, Mr King. During the discussion, Mr King referred to the claimant as a “bald c***” and threatened to “deck” him. There was a further incident between the claimant and Mr King in late March 2021 and the same language was used.

The claimant was dismissed for gross misconduct, but claimed wrongful dismissal, unfair dismissal, age discrimination, harassment and victimisation.

Initial Employment Tribunal (May 2022)

The majority of the claimant’s claims were upheld, the most noteworthy being his claim for harassment on the basis of sex.

The Tribunal found that “there is a connection between the word ‘bald’ on the one hand and the protected characteristic of sex on the other… baldness is much more prevalent in men than women. We find it to be inherently related to sex.”

Furthermore, it was held that Mr King’s conduct was “unwanted, it was a violation of the claimant’s dignity, it created an intimidating environment for him, it was done for that purpose, and it related to the claimant’s sex.” and therefore amounted to harassment related to sex.

The respondent appealed to the Employment Appeal Tribunal.

Employment Appeal Tribunal (EAT)

The EAT’s role was to determine whether the original decision had been based on an interpretation of discrimination legislation (the Equality Act 2010), which was too broad in holding that women were less likely to be bald then men.

The EAT Judge held that the position that sex-related harassment must be “both inherent to the gender in question and rooted in the gender in question was not supported by any authority”.

Ultimately, the EAT agreed with the view of the original tribunal panel, that men are more likely to be bald and also, more likely to have unpleasant comments made about it than women. Therefore, the respondent’s appeal failed.

Comment

Following this decision, it is clear that insulting a man about his baldness would amount to sex-related harassment.

It is a stark reminder that making comments about an employee’s appearance can have significant consequences and so it’s important that employers provided regular training on bullying and harassment, as well as equality, diversity and inclusion, to help employees understand the boundaries in terms of acceptable language at work.

Employers should also ensure that their policies and procedures are regularly reviewed and up to date. This case also stands as a good reminder that employers should ensure that all complaints of harassment are dealt with and addressed appropriately.

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