The EAT has upheld an employment tribunal’s decision that comments about an employee’s baldness were harassment related to sex.
The employer’s appeal that for unwanted conduct to be related to sex, a comment must relate to a matter that is inherent to one sex to the exclusion of the opposite sex, was not supported by any authority and ran contrary to the purpose of section 26 of the Equality Act 2010.
In concluding that baldness is more prevalent in men the tribunal was recognising the fact that, baldness was more prevalent in those sharing the employee’s sex and more likely to be directed towards them. As such, it was inherently related to sex. The comments had been made by a colleague who admitted that he had intended to threaten and insult the employee in doing so. The tribunal was entitled to find that the words used had the purpose of violating the employee’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
(Section 26(1), Equality Act 2010 provides that sex harassment occurs where:
- A engages in unwanted conduct related to sex.
- The conduct has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
In deciding whether conduct has the effect referred to in section 26(1), each of the following must be taken into account:
- B’s perception.
- The other circumstances of the case.
- Whether it is reasonable for the conduct to have that effect.
Mr Finn worked as an electrician at British Bung Manufacturing Company Ltd (BBM). BBM is a small family business, employing around 30, predominantly male, employees.
On 31 July 2019, a colleague, Mr King, called Mr Finn a “bald c*nt” and threatened him with physical violence. BBM gave Mr King a warning regarding his conduct.
On 26 March 2021, Mr King threatened Mr Finn again, during a disagreement with his line manager and Mr Finn. Mr Finn told BBM’s managing director and company secretary that he had had enough of Mr King’s behaviour and that, if they did not fire him, “that would be it”. He then left the workplace.
Mr Finn was subsequently summarily dismissed for gross misconduct in relation to another matter. He brought claims in the employment tribunal for harassment related to sex, unfair dismissal and wrongful dismissal.
An employment tribunal held that Mr King’s conduct towards Mr Finn on 24 July 2019 amounted to harassment related to sex. It was unwanted, since it was unwelcome and uninvited, and Mr King admitted that his intention was to threaten Mr Finn and insult him. The comments were therefore made with the purpose of violating Mr Finn’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
The tribunal considered that there was a connection between the word “bald” and the protected characteristic of sex. The fact that something could potentially apply to both sexes did not mean that it could not be inherently related to sex. Although baldness affected both men and women, it was more prevalent in men. However, the tribunal held that the comment was not harassment related to age, since baldness affects men of all ages and was therefore not a characteristic of age.
British Bung Manufacturing Company Ltd and another v Finn [2023] EAT 165 (28 November 2023) (Decision 3 October 2024)
