Does referring to a man’s baldness at work amount to sexual harassment?

You may have seen that several national and international media outlets reported on a recent Employment Tribunal claim in which a male employee claimed that being insulted about his baldness at work amounted to unlawful discrimination and harassment.

Sky News’ headline and sub-heading were fairly typical, stating: “Calling a man bald is sexual harassment, employment tribunal rules: Commenting on a man’s baldness in the workplace is equivalent to remarking on the size of a woman’s breasts, a panel of three employment judges rule.”

There’s quite a lot to unpick about the decision and the write-up it received, so we thought we’d try and shed some light on what was decided and what this really means for employers and employees.

What was the claim about?

Mr Finn worked for The British Bung Manufacturing Company Limited and had 24 years’ service. The workplace was very male-dominated and so-called ‘industrial language’ was not unusual.

In July 2019 there was a disagreement between Mr Finn and a fellow employee regarding a piece of machinery. Mr Finn said the employee referred to him as a “stupid old bald c***” and threatened to hit him. The employer investigated the matter afterwards and Mr Finn was told that disciplinary action could be taken against the colleague, but he decided not to pursue this and hoped to try to draw a line under it.

However, another issue with the same colleague flared up in March 2021 and Mr Finn alleged that the colleague again called him an “old bald c***”. The situation escalated (we won’t go into all the details here, as they aren’t directly relevant) and ultimately Mr Finn was dismissed for misconduct. He brought claims to the Employment Tribunal, including claims for discrimination and harassment on the grounds of his age and sex.

What did the Employment Tribunal decide?

Having considered the evidence, the Employment Tribunal concluded that the colleague hadn’t used the word “old” when referring to Mr Finn on either occasion (therefore there was no age discrimination), and in March 2021 the colleague hadn’t referred to Mr Finn as a “bald c***” either.

However, the Employment Tribunal did find that Mr Finn had been called a “bald c***” in July 2019, and therefore they needed to consider whether or not this amounted to discrimination and/or harassment on the grounds of his sex.

The Tribunal took the view that clearly baldness is more common in men than women and therefore the comment was inherently related to Mr Finn’s sex. However, slightly oddly, the Tribunal went on to quote a 1995 case where a woman had succeeded in claiming sex discrimination after having been on the receiving end of the comment “hiya, big tits”. The Tribunal decided that this was an equivalent situation to Mr Finn’s claim, because although some men might have a medical condition which causes them to have breasts, it was clearly a comment which was much more likely to be aimed at women.

The comment was unwanted, it was a violation of Mr Finn’s dignity, it created an intimidating environment for him, it was done for that purpose, and it related to his sex. Therefore all of the necessary requirements for a harassment claim were met.

There was of course a time limit issue for the July 2019 comment (in discrimination claims the time limit is three months less one day from the date of the discriminatory act). However, the Tribunal decided that it was just and equitable for the time limit to be extended, therefore the claim was considered to have been brought within time.

The Tribunal will arrange a further hearing in due course to determine the appropriate compensation for Mr Finn.

What did the media get wrong?

The main thing that seems to have been incorrectly reported is that the media said this was a claim of ‘sexual harassment’. It was in fact a claim of harassment on the grounds of sex, which is not the same thing!

For a claim of sexual harassment, the conduct would have to be “unwanted conduct of a sexual nature”, but clearly the comment made to Mr Finn was not sexual. It seems that the confusion may have arisen because of the example the Tribunal chose to refer to in its decision, which was clearly a very different category of comment to the one made towards Mr Finn.

Another thing that was misreported is that the case was decided by ‘a panel of three judges’. Employment Tribunal decisions in discrimination cases are made by a panel consisting of an Employment Judge (who is a qualified solicitor or barrister) with two ‘lay members’ (one of whom usually comes from a trade union background, and the other usually comes from a management/HR background).

What do employers need to know?

This case was decided at Employment Tribunal level only, so it is not binding on other Tribunals. However, it does appear that the Tribunal applied the legal definition correctly, so in our view it is something that is likely to be followed in future.

Therefore, although referring to a man’s baldness at work would not amount to “sexual harassment”, it is important to be aware that it could amount to harassment on the grounds of his sex.

As always, the best approach for employers to take is to ensure that your equality and dignity at work policies and procedures are up to date, and that staff are properly trained on them.

Ideally, this will ensure that employees don’t make these kinds of comments to each other, but if the policies are breached, then having taken these steps can be a key part of your defence to claims of discrimination and harassment.