Can calling a man ‘bald’ at work amount to sex-related harassment?

The recent case of Finn v The British Bung Manufacturing Company Limited and King serves as a useful reminder for employers that steps should be taken to prevent workplace harassment.

Background

The case attracted significant media attention, given the particular facts. The claimant was employed as an electrician by the Respondent, which is a manufacturing business. During an argument, the claimant was called a “bald c***” by a colleague, which was followed by threats of violence.

The claimant brought several claims in the Employment Tribunal, including a claim for sex-related harassment under the Equality Act 2010 which this article focuses on.

The law

The Equality Act 2010 prohibits acts of harassment within the workplace related to protected characteristics.

Section 26(1) of the Equality Act 2010 sets out the general definition of harassment: a person harasses another if they engage in unwanted conduct related to a relevant protected characteristic, and that conduct has the purpose or effect of either violating the other’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

In deciding whether the conduct has that effect, a Tribunal will take into account the perception of the complainant, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

The relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.

For the purposes of the Equality Act 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer, so the employer will be liable for harassment done by its employees.

It is important to draw the distinction between ‘harassment related to sex’ and ‘sexual harassment’, which is something that a number of media outlets failed to do when reporting on this case. Sexual harassment is defined in Section 26(2) of the Equality Act 2010 as “unwanted conduct of a sexual nature” and which has the purpose or effect referred to in the general definition above, which was clearly not applicable in this case.

The judgment

The Tribunal quite readily determined that by referring to the claimant as a “bald c***”, it was conduct which was unwanted and which had the purpose of violating the claimant’s dignity and created an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.

However, to be successful with such a claim, the claimant had to establish a link between the harassment and a relevant protected characteristic (i.e. that the comment related to his sex). In this case, the link between the language used and the relevant protected characteristic was not obvious, because there was no direct reference made to the claimant’s sex. Therefore, the Tribunal had to analyse the precise words used, together with the context, to establish whether it related to the claimant’s sex.

The Tribunal found that there is a sufficient connection that relates the word ‘bald’ to the protected characteristic of sex. In response to the respondent’s argument that women as well as men may be bald, the Tribunal stated that “baldness is much more prevalent in men than women” and so it is much more likely that a person on the receiving end of such a remark would be male. Therefore, the claimant succeeded with his sex-related harassment claim.

Comment

The answer to whether calling a man ‘bald’ at work can amount to sex-related harassment clearly depends on the context.

This judgment sets an arguably low bar for a connection between harassment and a protected characteristic and, although it may be appealed, it should serve as a strong reminder to employers that offensive comments exchanged between colleagues, including ‘banter’, at work can lead to Employment Tribunal claims. This applies to all employers; even businesses where, as in this case, industrial language is commonplace at work. The making of personal remarks about a colleague’s appearance will expose an employer to risks of claims.

When facing claims of harassment, an employer can seek to rely on a defence that they took “all reasonable steps” to prevent the employee from acting as they did. In this case, the respondent did not raise the ‘reasonable steps’ defence, but it highlights the importance for employers to ensure that they have clear policies on workplace bullying/harassment. The policies and procedures should be properly enforced, be kept up-to-date and should be followed up with regular training for staff.