An Employment Tribunal has ruled that calling a man ‘bald’ is sex harassment. Yes, you read that right.
Before you exclaim ‘what on earth?’ or ‘what is the world coming to?’ consider this: If a man were to comment on the size of a woman’s breasts we would easily accept this as sexual harassment because such a comment is far more likely to be made to a woman than a man. So, applying the same logic, while women as well as men may be bald, baldness affects far more men than women and so it is far more likely that a comment about baldness would be made in relation to men.
This was the reasoning of the Tribunal, “In our judgement, there is a connection between the word “bald” on the one hand and the protected characteristic of sex on the other…baldness is more prevalent in men than women.” Considering the sexual harassment of a woman by remarking on the size of her breasts, the judgement stated “It is much more likely that a person on the receiving end of a comment such as that… would be female”. The Tribunal held that to call someone bald is “ inherently related to sex.”
The case was brought by Mr Finn against his employer of 24 years, British Bung Company. During a shop floor row, he was referred to as a ‘bald [expletive]’. The Tribunal held that this was unwanted conduct that violated Mr Finn’s dignity and created an intimidating environment for him, which was done for that purpose, and it was related to his sex.
After reading this you might now be slightly worried because you can recall a time where you have called someone bald, but taking some comfort from the fact that it was just a joke. However, this excuse may not be accepted by Tribunals in defence of harassment claims. Recent cases have concerned comments ranging from an Indian employee being called a “cheeky monkey” during a round of golf, a female employee being called “menopausal” and a “dinosaur” due to her age and an insinuation that an employee must be “gay then” because he didn’t like football. In each case, banter was not accepted as a defence.
The Equality Act 2010 defines unlawful harassment as a person engaging in unwanted conduct related to a protected characteristic which has the effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. What’s more, the person does not need to have the protected characteristic relevant to the unwanted conduct in order to be offended. For example, the female employee being called “menopausal” simply because she was perceived to be of an age that she would be menopausal, even though she was not.
There’s a time and place for humour and to help employees recognise what is and is not acceptable, employers should have a clear policy and reinforce that respect and equality underpins all interactions between employees at all times. Employers should also stress that the decision as to whether a comment is ‘safe’ is not one for the person making it. We each have our own view on what we are comfortable hearing and the legal test is the purpose or effect of the conduct. For that reason, it is important to consider how the comment might be perceived and if there is any doubt about, it is best not to make the comment at all.
If you have any questions about how to avoid harassment in your workplace or an employment law related question, please get in touch with Blackadders’ Employment Team working in Glasgow, Edinburgh, Perth, Dundee and Aberdeen.
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