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Tribunal says Mocking Baldness is Harassment

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An Employment Tribunal has found that derogatory comments regarding a person’s baldness can constitute harassment on the grounds of sex, contrary to the Equality Act 2010. The Claimant, Mr Finn, was referred to by a male colleague as a “bald [expletive]” during a heated confrontation. He was later dismissed on the grounds of gross-misconduct and brought a claim against his employers, which included harassment on the grounds of sex in reference to the comment made in reference to his baldness.

Under section 26(1) of the Equality Act 2010, “A person (A) harasses another (B) if—

(a) A engages in unwanted conduct related to a relevant protected characteristic, and

(b) the conduct has the purpose or effect of—

(i) violating B’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The all-male tribunal hearing the case stated “In our judgment, there is a connection between the word “bald” on the one hand and the protected characteristic of sex on the other.” They went on to recognise that, whilst women as well as men can also be bald, “baldness is much more prevalent in men than it is in women”.

The tribunal cited the case of Insitu Cleaning Co Limited v Heads [1995], in which the claimant succeeded in a sex discrimination claim after a comment was made towards her about the size of her breasts. It was acknowledged that, whilst men with certain medical conditions may also have large breasts, that fact is not relevant because women are far more likely than men to fit that description.

It is perhaps worth noting however that the case of Insitu was decided before there were any laws in place specifically protecting employees against sexual harassment from their colleagues.  It was in this context that the tribunal had used direct discrimination as a means of trying to prevent sexual harassment in the Insitu case.

It is possible that the Finn case could be appealed to the EAT, as the idea that the pejorative use of the term ‘bald’ is relevant to the protected characteristic of sex is highly debatable. It lends itself to the possibility that the Tribunal’s decision could ‘open the floodgates’ to similar claims regarding workplace comments which apply to one category of people to a greater extent than others and can loosely be attributed to one of the protected characteristics of age, disability, gender reassignment, race religion or belief, sex, sexual orientation.  It seems to involve a blurring of indirect discrimination on the one hand and harassment under section 26(1) of the Equality Act 2010 on the other, which would be a highly significant step if it were upheld on appeal.