Baldness and workplace harassment related to sex – comments on the case of Finn v British Bung Manufacturing Company

Does calling someone bald amount to harassment related to sex?

Under section 26(1) of the Equality Act 2010, harassment is defined as unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

In deciding whether the conduct has that effect, the perception of the complainant, the other circumstances of the case and whether it is reasonable for the conduct to have that effect must all be considered.

Harassment of an employee by an employer is made unlawful within the workplace by section 40 of the 2010 Act.

In that context, enter stage left, the case of Finn v British Bung Manufacturing Company Limited. In this case, the Claimant, Mr Finn, worked as an electrician for his employer, a small family business with a predominantly male workforce. It was accepted that there was what was termed ‘industrial language’ within the workplace but during an argument with a colleague, Mr Finn was called a ‘bald c***’ and was physically threatened. Mr Finn brought a claim of harassment related to sex on the basis of that conduct.

The question the Tribunal considered was whether or not ‘baldness’ ‘related’ to sex. It found that it was, because “baldness is more prevalent in men than women” and that, by referring to the claimant as ‘bald’, the conduct was unwanted, it was a violation of the Claimant’s dignity, it was done for that purpose, and it related to the Claimant’s sex; as such, all parts of the section 26(1) definition of harassment were made out.

The Employer appealed to the Employment Appeal Tribunal, arguing that baldness is not related to sex as both men and women can be bald.

The Employment Appeal Tribunal dismissed the appeal in November 2023, concluding that “the characteristic by reference to which Mr Finn’s colleague had chosen to abuse Mr Finn was more prevalent in people of Mr Finn’s gender, more likely to be directed at such people and, as such, inherently related to sex”.

Whilst it is helpful to have this definitive guidance from the EAT that baldness ‘relates’ to sex for the purposes of a harassment claim, it is interesting that the Tribunal focussed on baldness, rather than the use of the ‘c’ word and whether or not that related to sex also. What if Mr Finn’s colleague had just called him the ‘c’ word and threatened violence? It is well established case law that the ‘sex’ referred to in a ‘harassment related to sex’ claim, does not have to be the sex of the ‘victim’ or indeed of the perpetrator and claims can be asserted by colleagues who overhear a comment that was not directed at them.

Of course, context is king; depending upon the extent of the ‘industrial language’ which was commonplace in the workplace, it may be that calling a work colleague the ‘c’ word would not of itself amount to harassment related to sex. But if Mr Finn was used to the use of the ‘c’ word in ‘banter’, but not in anger accompanied by threats, would the position be different? And in any event, someone not party to that ‘industrial language’, overhearing that terminology, is quite likely to be offended and may well find such an environment hostile and degrading such that it could found a claim for harassment related to sex, bald or not.

On an entirely informal and unscientific poll conducted amongst friends and colleagues, it was roughly 50% of those asked who thought that the ‘c’ word ‘related to sex’; of those who didn’t, they felt that it was a generic and highly offensive swear word but no longer viewed as ‘related to sex’. If the reality is that the ‘c’ word has changed in its meaning, such that it is ‘just’ an offensive swear word and not necessarily related to sex, can it be right that aggressively calling someone bald can found a claim for harassment related to sex, but not if they were called the ‘c’ word in the same context?

What can we learn from the case?

This case serves as a cautionary tale and is one in a long line of cases which make it clear that commenting on someone’s personal appearance at work carries with it some risk if not handled sensitively and appropriately particularly when they inherently relate to one sex (or any other protected characteristic).

Should you require advice in relation to any of the matters raised in this blog, please contact Linky Trott or any other member of the Employment team

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