Comments about a colleague’s baldness amounted to sex-related harassment

In British Bung Manufacturing Company Ltd and another v Finn [2023] EAT 165, the Employment Appeal Tribunal (EAT) upheld an Employment Tribunal’s decision that a comment about a male employee’s baldness amounted to sex-related harassment.

The factual background

Mr Finn started working at British Bung Manufacturing Company Ltd (BBMC) on 22 September 1997 and he worked as an electrician. BBMC is a manufacturing business and employs about 30 employees, most of them male, and ‘industrial language’ was common on the shop floor.

On 24 July 2019, following a confrontation between Mr Finn and Mr King (another employee), Mr King called Mr Finn a “bald c*nt” and threatened him physically. Mr Finn complained about Mr King’s behaviour, but decided not to progress his complaint as he was told that Mr King was raising a child by himself (and he did not wish to threaten Mr King’s job).

On 26 March 2021, there was a further disagreement between Mr King and Mr Finn on the factory floor. Mr King threatened Mr Finn and Mr Finn approached BBMC’s Managing Director to inform him that if they did not fire Mr King “that would be it”. Mr Finn then left the workplace and was subsequently dismissed for gross misconduct in relation to another matter.

Mr Finn brought claims for unfair dismissal, wrongful dismissal and sex-related harassment before the Employment Tribunal. 

The law on sex-related harassment

Under section 26(1) of the Equality Act 2010, a person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either: violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The Employment Tribunal’s decision

Mr Finn was successful with his claims for (ordinary) unfair dismissal and wrongful dismissal; he was also successful in his claim for sex-related harassment in respect of the 24 July 2019 incident, with the Employment Tribunal finding that calling him a “bald c*nt” was unwanted, that Mr King had accepted that his purpose was to threaten and insult Mr Finn, and that the comment was made with the purpose of violating Mr Finn’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him, and that the conduct related to Mr Finn’s sex as baldness was more prevalent in men than women (following the EAT’s reasoning in Insitu Cleaning Co Ltd v Heads [1995] IRLR 4, EAT). The Tribunal also found that BBMC was vicariously liable for this conduct.

BBMC appealed against this judgment, arguing that the Employment Tribunal had applied the wrong test in deciding whether Mr King’s conduct on 24 July 2019 related to Mr Finn’s sex.

The decision of the Employment Appeal Tribunal

The EAT dismissed BBMC’s appeal, holding that the Employment Tribunal had used the correct test (that whether a particular characteristic relates to a particular sex depends on the prevalence of the relevant characteristic in the relevant sex); the EAT found that BBMC’s argument (that in order for unwanted conduct to be related to sex it had to be in relation to a characteristic which is inherent in one sex and not apply at all to the other) was not supported by any authority and contradicted the purpose of section 26 of the Equality Act 2010.

The EAT clarified that in order for a statement to constitute harassment under section 26(1) of the Equality Act 2010, the Tribunal would need to examine: 1) the prevalence of the relevant characteristic in men or women and 2) the absence of an alternative explanation for the conduct in question.

Lessons to draw from this case

As was the case in Insitu, a one-off remark can constitute harassment under section 26(1) of the Equality Act 2010 (in the case of Insitu, a remark on the size of  woman’s breasts was sufficient to constitute unlawful sex-related harassment). 

If an employer wishes to avoid vicarious liability for unlawful harassment by one of its employees then it will need to be able to demonstrate to an Employment Tribunal that it took all reasonable steps to prevent the relevant conduct from occurring – this will normally involve an examination of what policies the employer put in place, what training the employer provided to its employees in order to reasonably attempt to prevent unlawful harassment or discrimination from occurring, and whether the employer had made it clear to its employees that harassment is unacceptable in the workplace and will lead to disciplinary action. Employers should take care to train their employees on equality and diversity in the workplace and how to treat colleagues appropriately and they should make sure that their employees are aware of the potentially serious disciplinary consequences that would follow an act of harassment.

Employers will also need to consider whether an act of harassment relates to an employee’s sex if, for example, a comment is made about a male employee’s muscles or the long hair of a female employee – if these characteristics are more prevalent in one sex than the other (which, in these examples, is probably the case) then the unwanted conduct relevant to these characteristics may constituted sex-related harassment. 

Chris Hadrill is Partner in the employment team at Redmans.