Comments Made About Baldness Can Be Harassment Related to Sex

Comments made about baldness can be harassment related to sex – British Bung Manufacturing Company Ltd and another v Finn [2023] EAT 165

Mr Finn was employed as an electrician by the Respondent, which was a small company with mainly male workforce. In July 2019, a colleague called Mr Finn a ‘bald ****’ and threatened him with physical violence, for which he received a warning.

The colleague further threatened Mr Finn in March 2021, to which Mr Finn stated that if the colleague was not removed, ‘that would be it’ and left. He was later summarily dismissed for gross misconduct linked to another matter.

Claims brought to the Employment Tribunal (ET) were for harassment related to sex, unfair dismissal and wrongful dismissal. The ET held that the 2019 conduct amounted to harassment related to sex, the colleague admitted that he had intended to insult and threaten Mr Finn.

The ET looked at the link between the word ‘bald’ and sex as a protected characteristic. They found that although baldness could be present in any sex, it was more prevalent in men. The Respondent appealed to the EAT and argued that, amongst other points, for baldness to be linked to sex, this would mean it needed to apply exclusively to one sex, over the other.

The EAT dismissed the appeal finding that the argument that for baldness to apply, it could only therefore apply to one sex, was not supported by any case law/authority. Rather, they found that the comment said directly included baldness and that trait was more prevalent in those with the same sex as Mr Finn and therefore more likely to be aimed at them. It was therefore inherently linked to sex.

Looking at whether the comment could be deemed harassment, they were supported by the fact that the colleague admitted a threatening and insulting intention. The ET were therefore correct in finding that the words had the purpose of violating Mr Finn’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Thus, satisfying the test for harassment.

This case serves as a useful reminder that linking a comment to a protected characteristic does not have to explicitly mention that characteristic. For example, in this case baldness is not in itself a protected characteristic but the fact that it is more prevalent in men, helps to ensure comments of this nature are covered by discrimination law.