Employment tribunal: use of word ‘bald’ can amount to sex-based harassment

A case in which a man was dismissed from his job after an aggressive and foul-mouthed exchange of words has led to an employment tribunal ruling that being called ‘bald’ at work is harassment related to sex 

Electrician Tony Finn worked for West Yorkshire-based British Bung Company, without any disciplinary problems for 24 years, before he was fired in May 2021.

Two strong arguments with factory supervisor Jamie King over the maintenance of equipment, one in 2019 and one in 2021, saw King on both occasions refer to Finn as a “bald c**t”. On the second occasion, on 25 March 2021, Finn said he feared for his personal safety.

The three-person tribunal, led by Judge Jonathan Brain, was asked to rule whether calling someone bald is an insult or amounted to harassment.

His ruling 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. Miss Churchhouse [the respondent’s representative] was right to submit that women as well as men may be bald. However, as all three members of the Tribunal will vouchsafe, baldness is much more prevalent in men than women. We find it to be inherently related to sex. (In contrast, we accept that baldness affects (predominantly) adult males of all ages so is inherently not a characteristic of age).”

The tribunal said that in a previous case a man was found to have sexually harassed a woman by commenting on the size of her breasts, stating that it is more likely the person receiving a comment “such as that which was made in (that) case would be female”.

It added: “So too, it is much more likely that a person on the receiving end of a remark such as that made by Mr King would be male.”

The comments were personally offensive to Mr Finn, the judge ruled. He said: “Mr King made the remark with a view to hurting the claimant by commenting on his appearance which is often found amongst men.”

“The tribunal, therefore, determines that by referring to the claimant as a ‘bald c***’, Mr King’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.”

After the second incident Mr Finn immediately went to see the factory management, but unhappy at their response, left his shift and drove home. There was no further contact between claimant and respondent until 8 April 2021, 14 days after the incident with Mr King. During this period there was some confusion over whether Mr Finn was on furlough or not.

British Bung Company dismissed Mr Finn for misconduct in July 2021 after he had written a statement about the second incident with his son, a police officer. He handed this, which was headed “West Yorkshire Police” to his bosses who then allegedly accused him of trying to intimidate them.

Mr Finn, who was accompanied by his son (not in uniform) at this meeting, had assured the managers that this was not a police statement but the firm dismissed him on grounds of gross misconduct. Mr Finn appealed but the company decided that he had deliberately sought to use West Yorkshire Police headed paper to influence them and had not been sufficiently apologetic about this.

The panel upheld claims of sex harassment, unfair dismissal and wrongful dismissal but dismissed a claim of age discrimination.

A date to determine the claimant’s compensation will be set by the court.

Legal comment

Although the case has attracted plenty of media attention because people don’t see how the use of the word “bald” can amount to sex-based harassment, legal experts feel the ruling was predictable.

Philip Cameron, partner at GQ|Littler, said: “This is an interesting but perhaps unsurprising decision, particularly in light of the use of an expletive in conjunction with the word ‘bald’. The law on harassment is very wide and captures a huge range of behaviour and comments in the workforce. The fact that an expletive was used too in this case made it worse, but the use of the word ‘bald’ would likely amount to harassment.”

Alexandra Mizzi, legal director at Howard Kennedy, commented: “Whatever your view on so-called workplace ‘banter’, calling someone a ‘bald ****’ at work clearly crosses more than a few lines. But is it sex-related harassment?

“Viewers of the 2022 Oscar ceremony will be well aware that hair loss isn’t only a male problem, but this is a good example of a tribunal taking a commonsense view.

“The reality is that any offensive remarks about colleagues run the risk of an employment tribunal claim in some form, so there’s nothing particularly new here. Because there’s no freestanding claim in law for workplace bullying, claimants often have to bring claims under anti-discrimination law (unless they are prepared to resign and claim constructive unfair dismissal, or can prove they’ve suffered personal injury and so pursue a PI claim). So it was logical for the claimant in this case to argue that the remark was related to his sex, as he might otherwise have had no legal remedy.

“The remark was obviously offensive, given the foul language, and appears to have been intended to be so, so it’s not surprising that the tribunal was inclined to find in his favour.

“The lesson for employers is simple: offensive remarks of any kind can lead to tribunal claims, so make sure you have clear policies on workplace bullying and harassment, and ensure they are properly enforced.”

Camilla Beamish, legal director at law firm Cripps, reminded that it the verdict was not binding on subsequent cases: “It is important to remember that there are different types of harassment under the Equality Act. This case is not about sexual harassment, ie when a person engages in unwanted conduct of a sexual nature. Rather it is about a person engaging in unwanted conduct related to an individual’s sex, ie the fact that they are male or female.

“This is a first instance employment tribunal decision and, as such, is not binding on subsequent cases. However this is a useful reminder to HR teams of just how easily so called “office banter” can result in claims of harassment by staff. Not all insults will constitute unlawful harassment. The insult needs to relate to a particular protected characteristic relevant to the individual such as a disability, their age, their religion or, as is the case here, their sex.

“Both males and females can be bald but, in this case, the tribunal panel held that, as baldness is more prevalent in men than women, the comment was inherently related to the individual’s sex.

“It is vital that employers have an up to date anti-harassment policy that contains an appropriate procedure for employees to report harassment. Regular training for managers and supervisors in equal opportunities and harassment issues is essential.

“In addition, offering victims of harassment appropriate support via an employee assistance programme or staff support network can be beneficial. Most importantly, taking complaints of harassment seriously and taking appropriate disciplinary action against harassers will send a clear message to staff that their safety and well-being is a priority.{

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