Due to the incident that occurred at the Oscars earlier this year, over a joke linked to baldness, there is now a recent Employment Tribunal (ET) decision that gives some guidance on the above question in the context of UK employment law.
The Equality Act 2010 (EA) (sections 26 and 40) protects an individual from harassment where the unwanted conduct relates to one or more of the protected characteristics, such as sex. That conduct violates the person’s dignity and or creates a hostile environment.
Further, the Equality & Human Rights Commission's Code of Practice on Employment in paragraph 7.7 highlights that unwanted conduct can include a wide range of behaviour.
In the case of Mr A. Finn-v. The British Bung Manufacturing Company Limited 2021, Tony Finn, (F), employed as an electrician by his employer, alleged that during an altercation with his shift supervisor (a male employee) on July 24th, 2019, the latter called him a "bald c" and threatened physical violence to him.
The supervisor admitted to saying the above, and the employer warned the supervisor that such behaviour was unacceptable, but no disciplinary action was taken.
It was not until March 2021 that a further altercation arose between (F) and his supervisor, causing (F) to leave his workplace following the incident, and the employer only acted upon matters in April 2021 when (F)’s son (a police officer) prompted them to do so.
During the employer’s investigation, they identified that the witness statement of (F) was on a West Yorkshire Police template. This suggested to the employer that (F) had made a police complaint and that, together with other factors, resulted in (F) being dismissed on May 25th, 2021.
(F) took the matter to (ET), who upheld (F) claims of unfair dismissal, wrongful dismissal, and harassment about his sex.
With regards to the latter from the above, the (ET) acknowledged that there could be some workplace banter on the factory floor, but here the supervisor had gone too far as he had made personal remarks about (F)’s appearance, the purpose of which was to violate (F)’s dignity and create an intimidating, hostile workplace environment for him.
The employer’s legal argument was that women might also be bald, but the (ET) stated that baldness is much more prevalent in men than women, and therefore it is inherently related to their sex and pointed to the fact that all 3 male members of the (ET) panel were bald.
The (ET) referred to a previous case, Insitu Cleaning Co Limited v Heads [1995] IRLR, 4, in which a woman was sexually discriminated against by a manager who commented to her about the size of her breasts, and (ET) emphasised that the person on the receiving end would be more likely to be a female.
Although the above judgement is the decision by the Employment Tribunal (ET), thus not binding on future Employment Tribunals and only persuasive, the (ET)’s findings send a clear message that is separate to sexual harassment allegations, where harassment is related to a person’s appearance due to their sex, that inherently would be a protected right.
The article is for general information and should not be relied upon as legal advice. However, should you require any further assistance on the matter, please do not hesitate to call us for free on 01455 852 028!
