A recent decision by the Employment Appeal Tribunal has sent shockwaves through HR departments and workplaces.
The case of Mr A Finn v The British Bung Manufacturing Company Ltd confirmed that calling a man bald is no longer a mere insult/banter. Even if factually true, it can amount to sex-related harassment.
British Bung, a company based in Yorkshire, prides itself as a manufacturer of wooden cask closures for the brewing industry. They sought to appeal an earlier employment tribunal decision which held that calling a male employee “bald” amounted to sex-related harassment. The basis for their challenge was that they believed the employment tribunal’s original ruling was too broad by stating that a man was more likely to suffer from hair balding compared to women.
The employee involved was a longstanding employee of British Bung with an impeccable service record who was dismissed in May 2021. He brought a claim of discrimination against British Bung based on two heated arguments with his supervisor and a dispute over maintenance works. During the arguments, the supervisor, on two separate instances referred to the employee as a “bald c***”.
Ignoring the gravity of using such a derogatory and aggressive insult, the use of the term “bald” was what led to the employment tribunal deciding that discrimination had taken place. The question posed was whether the word, ‘bald’ was linked to a protected characteristic under the Equality Act 2010 such as sex, race, nationality amongst others.
The finding was that, although women did also suffer from baldness, it is so prevalent in men that it is inextricably connected to sex, i.e. being a man.
The use of the word in the context of the insult meant it met the threshold of sex-related harassment; it was unwanted, violated his dignity, intimidated the employee and the comment was directly related to his sex.
The argument put forward to the EAT was based on the premise that, although baldness is more common among men, a woman could choose to be bald or be bald due to medical conditions and/or treatment.
The EAT Judge Naomi Ellenbogen, however, said the argument “lacks merit”. The EAT decided to uphold the original decision noting that men are much more likely to be on the receiving end of any such insults and this could be determined as sex-related harassment.
This case serves as a reminder that comments about appearance and physicality can potentially give rise to claims of discrimination where the comments relate to a protected characteristic.
It is important, in light of the new confirmed case law, that this resonates in the workplace to avoid discrimination claims being brought. Training is key and ensuring any internal policies highlight that sex related harassment is not acceptable conduct.