Did comments about baldness amount to sex-related harassment?

The EAT has recently considered an appeal against an employment tribunal’s finding that comments made about an employee’s baldness amounted to harassment related to his sex. 

British Bung Manufacturing Company Ltd and another v Finn [2023] EAT 165 

Facts of the case 

The claimant was employed by the respondent as an electrician until his dismissal in 2021 after over 23 years of service. An altercation had taken place at the end of July 2019 between the claimant and a colleague, during which the colleague had called the claimant a “bald [expletive]”. A further altercation took place in March 2021, as a result of which the claimant was dismissed for gross misconduct. 

He brought a number of claims against the company, including for unfair dismissal, wrongful dismissal and harassment relating to age and to sex. 

An employment tribunal upheld the claims of unfair and wrongful dismissal, and for harassment related to sex (see our summary of the decision). The tribunal was satisfied that there is a connection between the word ‘bald’ and the protected characteristic of sex, since far more men than women suffer from hair loss. The tribunal held that the term was inherently related to sex, and it met the test for sex-related harassment under the Equality Act 2010. 

The employer appealed to the EAT, claiming that for the harassment to be considered to relate to sex, it must apply to one sex to the exclusion of the other. The fact that baldness affects some women meant that it could not be categorised as sex-related harassment.   

EAT decision 

The EAT has dismissed the employer’s appeal, upholding the decision of the employment tribunal that the conduct in question amounted to harassment relating to the claimant’s sex. The fact that baldness is more prevalent in men meant that the abuse in question was more likely to be directed towards men, meaning that it was inherently related to sex. 

According to the EAT, the tribunal was entitled to find that the words used had the purpose of violating the claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him.   

The Birketts view 

This decision confirms that a feature must be more prevalent in those sharing a protected characteristic, for it to relate to that protected characteristic. It does not need to be a feature that only occurs in those with the protected characteristic. 

The tribunal had previously noted that the claimant himself was not concerned by the use of what it termed “industrial language” in the workplace but agreed that the comments about his appearance had crossed the line. It’s a useful reminder that even in a workplace where robust language is commonplace, it can still form the basis for a discrimination claim if it relates to one of the protected characteristics and meets the statutory test for harassment.