Can calling a man 'bald' at work amount to sex-related harassment?

Yes, found an Employment Tribunal in the recent case of Finn v British Bung Manufacturing Company Ltd and another. In this case the Claimant raised (amongst a number of other claims), a claim of harassment. Harassment is prohibited under the Equality Act 2010.  It is unlawful to engage in unwanted conduct related to a relevant protected characteristic (age, disability, gender reassignment, race, religion or belief, sex and sexual orientation) which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading or offensive environment for them.

In deciding whether the conduct has had the effect referred to, the tribunal will take into account the perception of the claimant, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

The Claimant, who worked on a factory floor in Yorkshire, was called a “bald *expletive*” during an argument with his line manager. This exchange was held to be harassment related to sex.

The tribunal held that they had “little doubt that being referred to in this pejorative manner was unwanted conduct as far as the claimant was concerned. This is strong language. Although, as we find, industrial language was commonplace on this West Yorkshire factory floor, in our judgment Mr King crossed the line by making remarks personal to the claimant about his appearance”.

Whether conduct is unwanted or not must be viewed subjectively from the employee's point of view and the tribunal noted that a one-off incident could amount to harassment.

The tribunal observed that “there is a connection between the word “bald” on the one hand and the protected characteristic of sex on the other”. Whilst the tribunal accepted that some women may be bald they noted that “baldness is much more prevalent in men than women.” As such they found the comment to be “inherently related to sex.”

It was found that the supervisor's intention – of his own admission – was to threaten the Claimant and insult him so the tribunal concluded that the purpose of the conduct was to create an intimidating, hostile, degrading, humiliating or offensive environment for him.

“The tribunal therefore determines that by referring to the claimant as a ‘bald ***’ … [the supervisor’s] conduct was unwanted, it was a violation of the claimant’s dignity, it created an intimidating environment for him, it was done for that purpose, and it related to the claimant’s sex.”

This case has been widely misreported - stating that the comment was held to be ‘sexual harassment’.  There is a distinction between sex related harassment and sexual harassment. Sex related harassment means unwanted conduct that is related to an individual’s sex (for example telling derogatory jokes about women that has the purpose or effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment). Whereas sexual harassment is unwanted conduct of a sexual nature (for example, unwelcome physical touching or making sexual remarks to or about a person).

The case does not raise any new points of law but serves as a good reminder that unwanted conduct (even between two members of the same sex) that is linked to a protected characteristic can constitute harassment.

As there is no freestanding remedy for bullying, claimants will often use discrimination claims to raise claims about unwanted treatment. Employers should ensure that they have policies and training on preventing workplace bullying, harassment and discrimination. As well as improving employee relations this will reduce the risk of the employer being held to be vicariously liable for acts of discrimination and harassment found to have been carried out by their employees.