In the case of Finn v The British Bung Manufacturing Company Limited (BBMC), the High Court ruled that calling a man “bald” did amount to harassment related to sex under the Equality Act 2010.
Background
The Claimant was employed by The British Bung Manufacturing Company Limited as an electrician from September 1997, until his dismissal in May 2021.
In July 2019, the Claimant was involved in an altercation with one of his colleagues, during which he was called a “bald c**t” and threatened with violence. The Claimant reported the incident but chose not to take it further due to his colleague’s personal circumstances at the time. There was a further incident of threatened violence to the Claimant by the same colleague in March 2021.
The Claimant was later dismissed by BBMC in May 2021 for gross misconduct following an internal disciplinary hearing where it was alleged that he had falsely suggested to have made a witness statement with the West Yorkshire Police in connection with the incidents concerning that employee.
Employment Tribunal
The Claimant later brought claims for wrongful dismissal, unfair dismissal, detriment, harassment and victimisation.
The Employment Tribunal found in favour of the Claimant’s claims of unfair dismissal, wrongful dismissal, detriment and harassment related to sex. The harassment claim is of particular interest.
Employment Appeal Tribunal
BBMC appealed the Employment Tribunal decision. In relation to the harassment claim, BBMC argued that the Tribunal’s interpretation of “baldness” was too vague and that to be considered sex related, the comments must be “inherent only in the gender concerned and not of the opposite gender”. BBMC further argued that as women can also experience baldness the comment could not be constituted as being inherent to gender.
The Employment Appeal Tribunal dismissed the appeal and upheld the finding of sex related harassment, finding that there was no legal basis for the argument that, for unwanted conduct to relate to sex, it must involve a characteristic that is “inherent or exclusive to one gender” and not present in the opposite gender. As baldness was clearly something which affects men more than women, the comment was capable of being harassment on the grounds of sex.
High Court
BBMC then appealed to the High Court and that appeal was also dismissed.
What it means?
This case provides an important reminder to employers that “banter” in the workplace can lead to discrimination and harassment complaints, even where it is not immediately apparent that the language used could relate to a protected characteristic. Employers may be liable under the Equality Act 2010 if it fails to protect its employees and other workers from harassment in the course of their employment. As such, it is important that employers have appropriate policies in place, as well as ensuring that staff are appropriately trained on such matters as they know what is acceptable and what is not.
