Can being called bald constitute sexual discrimination?
The short answer is yes.
In the case of Finn v The British Bung Manufacturing Company Limited  the Sheffield Employment Tribunal found that the Claimant, Mr Finn, had been harassed on the grounds of his sex as a result of being called a “bald c**t” at work.
This case has created a significant amount of media attention over the finding and in places criticism that the judgement perhaps goes too far.
As stated, Mr Finn was successful in his claim of sex harassment and therefore in understanding the judgment it is worth setting out relevant legal tests.
Harassment is set out in section 26 of the Equality Act 2010. The constituent parts of the test are:
– There must be unwanted conduct that is related to a relevant protected characteristic.
(Protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation).
– The unwanted conduct must have the purpose or effect of violating the individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
In this case, the Employment Tribunal determined that the comment was unwanted and had as its purpose or effect the violation of Mr Finn’s dignity and/or the creation of a hostile and degrading environment.
The key question for the employment tribunal was whether the comment (“bald c**t”) related to a protected characteristic. It should be noted that for harassment to take place the unwanted conduct needs to only relate to a protected characteristic and does not need to overtly focus on a protected characteristic.
The employment determined that the comment did relate to Mr Finn’s gender as a man as baldness affects men far more commonly than it affects women. In this case, there were discussions that comments about a woman’s breasts are highly likely to relate to her gender. Whilst men who suffer from conditions such as gynecomastia may have breasts the fact that both genders do does not mean that a comment about a woman’s breasts is not made about her gender. The employment tribunal applied the same logic to baldness that whilst it can affect both genders it predominantly affects men.
The employment tribunal found that the comment was made to Mr Finn to hurt him by commenting on his appearance (baldness) which is much more often found amongst men.
The case is a useful reminder of the breadth of protection offered under the Equality Act 2010 in respect of harassment. It is a timely reminder that someone can be harassed regardless of what the perpetrator’s intentions were and they can be harassed for something that only relates to a protected characteristic.
The decision of the Sheffield Employment Tribunal is a first instance decision so it is not binding as a precedent and it is not known whether the decision will be appealed or not. The case should serve as a reminder to all employers of the importance of a respectful workplace and a reminder of how clear importance of anti-discrimination policies, procedures and training.
If you would like advice, please contact GA’s employment team today by calling 01752 203500. You can also email me directly via Robert.Zacal@GAsolicitors.com.