The Employment Appeal Tribunal (EAT) has upheld a decision last year that calling someone bald amounted to sex-related harassment.
The EAT heard the appeal from Yorkshire-based British Bung Company, a manufacturer of wooden cask closures for the brewing industry, to establish whether the original employment tribunal decision in 2022 had interpreted discrimination law too broadly by ruling that a man was more likely to be bald than a woman.
Electrician Tony Finn worked for the company without any disciplinary problems for 24 years, before being dismissed in May 2021. This followed two heated arguments with factory supervisor Jamie King over the maintenance of equipment in 2019 and 2021, where on both occasions King had referred to Finn as a “bald c***”.
The original tribunal, led by Employment Judge Jonathan Brain, ruled there was a connection between the word “bald” and the protected characteristic of sex.
The Employment Judge said that British Bung’s representative was right to submit that women as well as men may be bald but vouchsafed that baldness is much more prevalent in men than women. “We find it to be inherently related to sex,” he said.
The comments were personally offensive to Finn, the Judge ruled. He said: “Mr King made the remark with a view to hurting the claimant by commenting on his appearance which is often found amongst men.”
The tribunal determined that by referring to the claimant as a bald c***, King’s conduct 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 upheld claims of harassment relating to sex, unfair dismissal and wrongful dismissal but dismissed a claim of harassment relating to age.
British Bung took the case to EAT, which this month heard arguments that Parliament had intended the protection against sex-related harassment in the Equality Act to apply to acts that are specific to being male or female.
“It has to be intrinsic to somebody’s sex and a necessary condition of it,” went counsel’s argument, who added that baldness is more common among men, but that women could choose to be bald or might be bald because of a medical condition. “They could be having cancer treatment, I don’t see it as something inherently related to sex,” said Georgina Churchhouse for British Bung.
But EAT Judge Naomi Ellenbogen said the argument “lacks merit”. The claim that sex-related harassment must be “both inherent to the gender in question and rooted in the gender in question was not supported by any authority”, she ruled.
The employment tribunal was “pertinently pointing out” that men are more likely to be bald and more likely to be on the receiving end of remarks about it, the EAT judge added.
The EAT upheld the tribunal decision, ruling that insulting a man for being bald does count as sex-related harassment.
The key point before the EAT was whether the original tribunal had interpreted anti-discrimination law too broadly by ruling that a man was more likely to be bald than a woman.
This decision is now rooted in case law and the judgment should serve as a reminder of the impact that remarks about a person’s physical appearance can have.
This case is also a very useful reminder that employers need to make sure staff have been sufficiently trained to ensure they don’t end up facing claims for vicarious liability (where the employer can be held legally responsible for the acts of its employees).