The bald truth about sex-related harassment

The recent decision by an employment tribunal that being called a “bald [expletive]” amounted to sex-related harassment was widely (mis)reported earlier this month.

Finn v The British Bung Manufacturing Company Ltd and another [ET 1803764/2021]

Facts

The claimant was employed by the respondent as an electrician until his dismissal in 2021 after over 23 years of service. An altercation took 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.

Employment tribunal decision

An employment tribunal upheld the claims of unfair and wrongful dismissal, and for harassment related to sex as a result of being called a “bald [expletive]”.

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 is inherently related to sex, and drew parallels with a previous decision where a man was found to have sexually harassed a woman by commenting on the size of her breasts – a comment far more likely to be made towards a woman.

The tribunal was satisfied that the comment amounted to conduct that 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. It therefore met the test for sex-related harassment under the Equality Act 2010 (not sexual harassment, as some reports have described it).

Comment

The tribunal’s decision notes that the claimant was not concerned by the use of “industrial language” within the workplace. He often expressed himself in what the tribunal describes as “Anglo-Saxon terms”, but he was particularly affronted by the comments about his appearance which the tribunal decided had “crossed the line”.

This case shows that even in a workplace where robust language is frequently exchanged and largely tolerated, it can form the basis for a discrimination claim if it relates to one of the protected characteristics and meets the statutory test for harassment.

The remedy in this case was left to be determined at a later date.