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.