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In the recent decision of Finn -v- The British Bung Manufacturing Company Limited, the Employment Tribunal (ET) investigated a claim for sex discrimination by a male employee who had been derogatively referred to as bald.
8 June 2022
Case Study
A man who brought about a sex discrimination claim on the basis of a remark about his hair has had his claim heard by the ET.
Mr Finn was employed by The British Bung Manufacturing Company (the respondent) from September 1997 until his dismissal without notice in May 2021.
Towards the end of July 2019, there was an altercation between Mr Finn and his colleague, Mr King, during which Mr King called Mr Finn a “bald c***” and threatened physical violence against him.
At that time, Mr Finn submitted a formal statement to the respondent regarding the incident but was told that Mr King was raising a young child on his own and that taking matters further might result in him losing his job. Consequently, Mr Finn decided not to pursue the incident further. However, in March 2021, there was a further altercation between Mr Finn and Mr King during which Mr King once more threatened physical violence.
Following this encounter, Mr Finn left the workplace and had no contact with the respondent until his son prompted the company to contact him a month later.
The respondent subsequently undertook an investigation into the incident in March 2021 and as part of that process Mr Finn attended a meeting accompanied by his son, who was a police officer.
At the meeting, Mr Finn handed over a witness statement that had been drafted on the West Yorkshire Police template for witness statements used in criminal proceedings. The respondent, therefore, believed that Mr Finn had reported matters to police and suspended him on 13 April 2021, eventually dismissing him for gross misconduct on 25 May 2021.
Mr Finn brought a number of claims against the respondent and Mr King as an individual in the ET, including unfair dismissal, wrongful dismissal and harassment on the grounds of sex discrimination, in relation to the comments made by Mr King.
Case Study
The ET found that calling a male employee a “bald c***” may be deemed to be harassment on the grounds of sex, contrary to section 26 Equality Act 2010 (EqA 2010).
Mr Finn’s complaints of unfair dismissal, wrongful dismissal, and harassment on the grounds of his sex were upheld, and in doing so, the ET set out very clearly their reasoning behind why Mr Finn had been subjected to sex-related harassment.
Whilst the ET found it was not disputed that “industrial language” was used on the shop floor of the respondent, Mr King’s actions in making personal comments relating to Mr Finn’s appearance went beyond the use of such language. In fact, the ET held that Mr King’s remarks regarding Mr Finn being a “bald c***” had the purpose of violating Mr Finn’s dignity and created an intimidating, hostile or degrading environment for Mr Finn.
Referring to the previous case of Insitu in which a woman was found to have been sexually harassed by a manger who made comments about the size of her breasts, the ET drew an analogy with Mr Finn’s case.
In Insitu, the tribunal had said that it was much more likely that a person on the receiving end of comments relating to breast size would be a female and this, therefore, amounted to sex-related harassment. In Mr Finn’s case, the ET held that it was much more likely that a person on the receiving end of comments relating to being bald would be male, despite the respondent’s objection that females might also be bald.
Subsequently and on the basis that Mr King’s comments had the purpose of violating Mr Finn’s dignity and creating an intimidating, hostile or degrading environment for Mr Finn, and related to his sex, the ET found that Mr Finn had been the subject of sex-related harassment contrary to section 26 EqA 2010.
This decision sends a very clear message to employers that where employees make comments relating to a person’s appearance which may be inherently related to their sex, there is a risk of sex-related harassment having taken place.
Accordingly, employers should ensure that they have robust equal opportunity and anti-harassment policies in place that deal with comments relating to personal appearance and that try and prevent any such behaviour taking place.
In the worst case scenario, having comprehensive policies in place should help employers in establishing the defence afforded to them in section 109 EqA 2010, that they had taken reasonable steps to prevent the discriminatory treatment taking place.
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