Calling employee bald amounts to unlawful harassment

The employment tribunal (ET) recently had to consider whether an employee being called bald amounted to sex and age-related harassment. In Finn v British Bung Manufacturing Ltd, the claimant was employed as an electrician and had worked for the respondent in a factory from September 1997 until May 2021, when he was dismissed without notice. Finn raised claims for unfair dismissal, detriment, harassment and victimisation. All claims other than the claim for sex-related harassment were dismissed.

Prior to his dismissal, the claimant was involved in an altercation with the factory supervisor, during which the supervisor called him a “bald c***.” The argument left the claimant fearful for his safety and created an intimidating environment for him. However, two key tests must be met for the conduct to amount to harassment. Firstly, the unwanted conduct in question must have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Secondly, the conduct must relate to a relevant protected characteristic.

Where a direct reference is made to an employee’s protected characteristic the necessary link will usually be clearly established. Where the link between the conduct and the protected characteristic is less obvious, tribunals may need to analyse the precise words used, together with the context, in order to establish whether there is any negative association between the two. In this case, the ET had to consider whether being bald was inherently linked to the male sex and, if so, whether the comment violated his dignity or created an offensive environment.

The ET found that the claimant wasn’t offended by the “industrial language” used (i.e. the use of the expletive), but was offended by being called bald. The ET were satisfied that the conduct towards him (calling him bald) was unwelcome, uninvited so therefore unwanted. It determined that it was difficult to decide anything other than that his supervisor called him balled with the purpose of violating his dignity and creating a humiliating environment. As a result, the first test was met.

The ET then considered the issue of whether the expression was related to the protected characteristic of sex. It ruled out that it was age-related, since young men were just as likely to be bald. In its judgement, it concluded that there was a connection between baldness and being male, stating that baldness is much more prevalent in men than in women. Therefore, the second test was also met, so the harassment claim succeeded.

It's interesting to note that the tribunal highlighted that the panel was comprised of three bald men. As such, it remains to be seen whether the case will be appealed, either on the grounds of bias, or to argue that the harassment tests weren’t met.

Nonetheless, employers should keep in mind that any offensive comments linked to a protective characteristic could lead to successful harassment claims. To minimise the risk of such, employers should pro-actively take reasonable steps to prevent harassment occurring in the first place. This can be done by having equality policies; communicating a zero-tolerance stance against any form of bullying, discrimination and harassment; introducing robust channels to report allegations, which employees are aware of; training manager on how to effectively respond to allegations; treating allegations seriously and investigating them fully; and taking appropriate action against any perpetrators.