Is Calling A Man Bald, Sexual Harassment?
The tribunal considered whether calling someone a ‘bald ****’ during a confrontation at work constituted harassment on the grounds of sex under the Equality Act 2010.
Is Calling A Man Bald, Sexual Harassment? In the case of Finn v (1) The British Bung Manufacturing Company and (2) King, the tribunal considered whether calling someone a ‘bald ****’ during a confrontation at work constituted harassment on the grounds of sex under the Equality Act 2010.
The claimant, Mr Finn, was employed as an electrician. He had several altercations with one of his colleagues, Mr King. Mr Finn covered up a machine which was awaiting specialist repair but Mr King removed the covers. Mr Finn asked Mr King about the covers and the conversation culminated in Mr King calling him a “bald ****” and threatened him with physical violence. Mr Finn claimed this remark was harassment on the grounds of his sex and brought a claim against his employer and Mr King (the respondents).
Under the Equality Act 2010, harassment on grounds of sex occurs where a person is subject to unwanted conduct related to their sex, and the conduct has either the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. When considering whether the unwanted conduct had that effect, the tribunal will take into account whether it was reasonable, in all the relevant circumstances, for the conduct to have the relevant effect.
The Tribunal Decision?
The employment tribunal accepted that this was unwanted conduct. Although the workplace was one where industrial language was commonplace on the factory floor, Mr King had crossed the line by making personal remarks about Mr Finn’s appearance.
As Mr King admitted he intended to threaten Mr Finn and to insult him, the tribunal also found that he used the words with the purpose of violating Mr Finn’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him. It did not therefore need to consider whether it was reasonable for Mr Finn to consider the conduct to have this effect, but the tribunal said that had it needed to do so it would have found that it was reasonable.
The employment tribunal went on to consider whether the conduct was related to sex and concluded that it was. While some women suffer from baldness, baldness is much more prevalent in men. It was therefore much more likely that a person on the receiving end of such a remark would be male. Mr Finn had therefore been subjected to harassment related to his sex. By contrast, the tribunal considered that as baldness affects adult males of all ages, it is not related to age. It would not therefore be possible to bring a claim of age-related harassment on this basis.
The tribunal will decide on the question of compensation at a later date.
This decision was made by a first-level employment tribunal so it is not binding on other employment tribunals.
The circumstances of the case overall were relevant to the tribunal’s decision, including that the ‘bald ****’ comment was made during a confrontation between the two employees. It is not clear whether the employment tribunal would have come to the same conclusion had a different combination of words been used. Calling someone a ‘bald idiot’ might also be regarded as unwanted conduct which might have the relevant purpose or effect, but arguably even simply calling someone a ‘baldy’ could constitute harassment depending on the circumstances and the context in which the comment is made.
The tribunal’s job in this case was made easier by Mr King’s admission that he intended to insult Mr Finn. This was important context as it enabled it to find that Mr King’s purpose was to create an intimidating, hostile, degrading, humiliating or offensive environment for Mr Finn. That meant that harassment was made out, without it needing to consider the effect of the conduct on Mr Finn and whether it was reasonable for him to feel intimidated or humiliated etc by it.
The case demonstrates the scope of protection that is available to workers under the Equality Act. It also serves as a useful reminder that the sex of the harasser is not always important, as the dispute involved two men.
Employers can’t always avoid these types of altercation, particularly where employees are working without supervision, but that doesn’t mean they can’t protect themselves from liability. Where an employee has harassed another on ground of either sex, or another protected ground, the employer won’t be liable where they have taken all reasonable steps to prevent the harassment from happening. This is likely to include having robust equal opportunities and anti-harassment and bullying policies and procedures in place, ensuring employees are aware of the contents of these policies and procedures, providing training to managers and employees, and ensuring that the deal with complaints effectively.
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