Having decided that “baldness” is inherently linked to men, the Employment Tribunal found that the Claimant in this case had been subjected to harassment relating to sex when a colleague used expletive insults including the word “bald”.
After nearly 24 years of unblemished service as an electrician for the respondent, the claimant was dismissed from his role when he refused to return to the workplace, following the second of two arguments with a co-worker. Whilst multiple claims were brought in this case to varying success (including unfair dismissal, victimization, and discrimination related to age), the claim that made headlines was the claimant’s successful assertion that being called a “bald [expletive]” by his co-worker amounted to harassment relating to sex.
Harassment under Section 26(1) of the Equality Act 2010 (EqA) occurs when one person (A) engages in unwanted conduct related to a protected characteristic which has the purpose or effect of either violating another (B)’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Sex is a protected characteristic for these purposes.
It is important not to conflate harassment related to sex with what is commonly termed sexual harassment as set out at S.26(2) EqA. The latter requires unwanted conduct of a sexual nature, which clearly would not encompass situations such as the present case where a person is called abusive names linked to his baldness. Misreporting of cases involving claims of harassment relating to sex as ‘sexual harassment’ cases is regrettably common in mainstream news reporting and is an issue that was addressed by our own Elizabeth McGlone both on social media and when speaking about this decision on LBC radio. Whilst the use of ‘sexual harassment’ may make for a more sensationalist headline, it is not an accurate or factual portrayal of the relevant issues in these claims.
Having set that out, we can now look at the Employment Tribunal’s reasoning for their judgment. The tribunal found that there is a connection between the word “bald” and the protected characteristic of sex, there being a much higher prevalence of baldness in men compared to women. The respondent sought to argue that women, as well as men, may be bald. Whilst the tribunal accepted that some women may indeed be bald, they took a ‘purposive’ approach to how the law should be interpreted, citing a previous case in which a woman had been sexually harassed when a manager made a comment regarding the size of her breasts. Transferring the logic of the respondent’s argument, this claim would now fail, as some men suffered from the condition of gynaecomastia. This, in the eyes of the tribunal, was not the proper analysis. A comment on the size of someone’s breasts was much more likely to be directed at a woman, in the same way that a comment on baldness would be much more likely to be directed at a man.
Having decided that “baldness” is inherently related to sex and that the behaviour concerned therefore related to a protected characteristic, the tribunal found that the rest of the test under S.26(1) EqA was also made out: the conduct was unwanted, violated the claimant’s dignity, created an intimidating environment and was done for such a purpose. The Claimant’s claim for harassment related to sex therefore succeeded. Do note that the fact the person making the comment to the Claimant was also male did not alter the result of the claim – whilst it may be an understandable assumption that one person could not harass another based on a protected characteristic shared by both, this is not the legal position. As this case shows, in the eyes of the law a male co-worker is just as capable of harassing another man in relation to his sex relative to a female co-worker.
This blog was written by Michael Green, Trainee Solicitor at didlaw.
