Is it sexual harassment to call a male employee "bald"?

What happened? In July 2019, in a workplace where industrial language was commonplace on the shop floor, Mr Finn was involved in an altercation with a younger colleague. He claimed that his colleague threatened him with physical violence, and reinforced the threats with a personal insult comprising three adjectives and a noun. The three adjectives were claimed to be “stupid” (alternatively “fat”), “old” and “bald”. The tribunal found as a fact that the only one used was “bald”. 

 

Twenty months passed. The altercation seemed to be water under the bridge. Then there was another. Mr Finn claimed to have been similarly insulted, but the tribunal decided that the witness in question “did not make pejorative remarks about the claimant’s age or appearance”. Matters escalated to a complaint, a suspension and a dismissal, which the tribunal decided to be unfair because BBM jumped the gun on the investigation, but not so unfair as to justify full compensation. Mr Finn’s contributory conduct will reduce the award, such as it may be, by 75%. 

 

But what led to the finding that excited the media? Let’s look at the Equality Act, and let’s initially draw the crucial difference between what might be described as ordinary harassment, and sexual harassment. Both types involve violating others’ dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. However, sexual harassment – which did not come within the scope of Mr Finn’s case at all – requires conduct or behaviour of a sexual nature, such as the making of sexual remarks about someone’s body or appearance. Ordinary harassment simply needs to relate to one of the Equality Act’s protected characteristics, namely race, religion, age, orientation, disability, and indeed sex. Mr Finn’s claim was based upon the last of these. 

 

Was it relevant that the July 2019 incident found itself resurrected and brought before the tribunal over 18 months out of time, given the ordinary requirement to bring harassment claims within 3 months? The tribunal decided that it was just and equitable to extend time and disregard the 18 month delay. It felt that the claim was meritorious, that it was in the public interest to hear it, and that there was no prejudice to the company because the altercation had been recorded in witness statements at the time. Any thought that the altercation was in fact water under the bridge, and that Mr Finn ought not to renege on his earlier decision to let it rest simply because he claimed to have been similarly insulted long afterwards, evidently did not persuade the tribunal. They were prepared to consider the claim and decide whether it was sound. 

 

What, then, tipped the balance under the Equality Act, and established the connection between the adjective “bald” and the protected characteristic of sex? The answer: “as all three members of the tribunal will vouchsafe, baldness is much more prevalent in men than women… [and] inherently related to sex.” It was decided that the remark – reduced by now on the facts to a single adjective and a noun – had been made with a view to hurting Mr Finn by commenting on his appearance which is often found amongst men; it was unwanted, it violated his dignity, it created an intimidating environment for him, and it related to his sex. 

 

To overcome the objection that the condition itself did not exclusively apply to the male sex, the tribunal decided that it was necessary to approach matters “purposively”. The Equality Act had an objective of proscribing workplace harassment; the recipient of such a comment would more likely be male; and the younger colleague made the comment with a view to hurting Mr Finn. Curiously, in referring to a 1994 Employment Appeal Tribunal case where an unwanted comment had related to the size of a woman’s breasts, the tribunal implicitly disregarded two notable sentences from that previous case: “A remark by a man about a woman's breasts cannot sensibly be equated with a remark by a woman about a bald head or a beard. One is sexual, the other is not.” In those days, there was no specific law against workplace harassment, only against discrimination. Thanks to the Equality Act, men can evidently now be looked upon in appropriate contexts as an oppressed class needing protection from harassment. Those two sentences are history. For completeness, it is not entirely beyond the realms of probability that baldness could generate a complaint of sexual harassment – think of some male actors’ shaved heads and their perceived allure, however unlikely it may be for such factors to be echoed in the average workplace – but this remains off the point in the present case. 

 

Compensation has been deferred for a further hearing, and this dispute may now settle rather than call for an assessment or go to appeal. It may be noted in that context that the noun – a four letter word of an exceptionally taboo nature – evidently did not trouble Mr Finn in its own right. As the tribunal put it, “there is no evidence that the claimant complained about the use of industrial language towards him other than about the epithets ‘old’ and ‘bald’ and therefore we find that the claimant was particularly affronted by them.” 

 

What lessons are to be learned? Employers will be only too aware that if offence is given and taken within the workplace, and if it escalates into grievances and claims, they will be liable in parallel with the employee who gave the offence, and they will almost always be the more attractive target for a claim. The “sticks and stones” saying is virtually obsolete, and resorting to “it’s only banter” may be dangerous. With all due regard for size and administrative resources, the only way to reduce risk may be to introduce new policies, or review existing ones, with a view to making it as clear as possible what language and behaviour is acceptable within the workplace and what is not. 

 

Do you have a workplace harassment policy in need of a review? Or do you need to introduce one? What about a general review of employment policies and contracts? Please get in touch. Contact David Cooper via dmc@coxcooper.co.uk or via 0121 325 5402.