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Can calling a man bald amount to harassment?

An Employment Tribunal has concluded that calling a man bald was related to the protected characteristic of sex and in the circumstances of the case amounted to harassment. It found that making remarks about a man’s baldness is akin to commenting on the size of a woman’s breasts.

Mr A Finn v The British Bung Manufacturing Company Ltd and Mr J King

Mr Finn, (the ‘Claimant’) had been employed by The British Bung Manufacturing Company Ltd (the ‘Respondent’) as an electrician since 1997 and had an unblemished disciplinary record throughout his 23 years of service.

On 24 July 2019, an incident occurred between the Claimant and one of his colleagues, Mr King. The Claimant reported that he was working on a machine that he had to cover up awaiting specialist repair and he noticed that the covers had been removed by Mr King. The Claimant asked Mr King if he had removed the covers and Mr King called him “a stupid old bald c***” and threatened to “deck [him]”’. The Claimant retreated to the nearby office of his supervisor in fear of his safety whilst Mr King continued his tirade of threats and abuse at the office door.

Following the incident, Mr King gave a statement in which he accepted that he had referred to the Claimant as a “bald c***” and that he was going to “knock him out”, he did not admit to referring to the Claimant as “old”. The Claimant was informed that Mr King was raising a young child on his own and therefore should he wish to take further action against him, this could result in him losing his job. The Claimant therefore decided not to pursue the matter any further and draw a line under it.

It is understood that between July 2019 and March 2021, no further issues occurred between the Claimant and Mr King. However, on 25 March 2021, the Claimant was working on the same shift as Mr King. The Claimant was tasked by Michael Steer, Managing Director for the Respondent, with modifying some of the machinery in the warehouse. In order to do this, the Claimant was required to approach Mr King to ask him to shut one of the machines down for safety reasons, to allow the Claimant to carry out the modifications. Mr King shut down the machine; however, he then returned with his supervisor, Mr Hardcastle who queried what the Claimant was doing. There was a disagreement between the Claimant and Mr Hardcastle as to whether the Claimant should modify the machines. This escalated and resulted in Mr King becoming involved. The Claimant advised Mr King it had nothing to do with him. Mr King responded by saying “And what are you going to do about it eh?”

In an attempt to diffuse the situation, the Claimant is understood to have said “nothing..I’m not having this again, go away.” Mr King then shouted, “Come on then, make me, you old bald c***. Make me!” whilst standing directly in front of the Claimant. The Claimant felt it was clear that Mr King was threatening him and he felt like Mr King “wanted to have a fight” with him, and stated that “his face was angry, he was tensed up. This really did scare me. His words and actions caused me harassment, alarm and distress and I feared for my personal safety due to his behaviour that was directed at me. Due to the fear of violence, I began to walk away”. Mr King is then understood to have shouted, “ooh, what are you gonna do. Run on to the boss and tell tales again?” as the Claimant walked away.

The Claimant understood Mr King to be referring to the first incident of harassment and violence which he had decided to pursue no further at the time.

The Claimant went back to his workshop area and waited for someone to come and check on him and when no one did, he then went into the office to report the incident and stated that he could not continue to work “whilst ever [Mr King] is going to threaten and abuse me like that”. The Claimant then left the office and drove home. The Claimant reports that he was not contacted by any of the management team after this incident, to either check up on him following the altercation or discuss raising a formal complaint.

This version of events differs to the account given by Mr King, as he alleges that it was the Claimant who initiated the altercation, in addition, he denied calling him an “old bald c***”. Both parties had witness accounts which verified their own version of events.

Between 25 March 2021 and 8 April 2021 there was no contact between the parties; however, after receiving his wage slip on 8 April, the Claimant contacted the Respondent regarding his pay as he had only been paid SSP, when he thought he should have been receiving furlough pay. A dispute then arose over this, along with other matters which were raised and subsequently, on 25 May 2021 the Claimant was dismissed by the Respondent without notice. The following day, the Claimant commenced ACAS Early Conciliation and ultimately went on to issue various claims at the Tribunal, including complaints for harassment related to age and sex arising out of the incident of 24 July 2019 and harassment related to age and sex arising out of the incident of 25 March 2021.

Decision

The complaint of harassment related to sex arising out of the incident of 24 July 2019 was successful; however, the complaint relating to age was not, due to a lack of evidence and the disparity of accounts as to whether the word “old” was used. The Tribunal held that Mr King crossed the line by making comments about the Claimant’s appearance and found that this conduct was unwelcome and uninvited and was therefore, unwanted. The Tribunal held that it was difficult to reach any other conclusion than that Mr King uttered those words with the purpose of violating the Claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Furthermore, the Tribunal held that it was just and equitable to extend time for this incident due to three reasons:

1. The harassment related to sex complaint was meritorious;

2. Parliament has legislated to outlaw harassment in the workplace and that is was in the public interest that such complaints are considered and adjudicated upon and that wrongdoers are held to account;

3. There is no prejudice to the Respondent by extending time. Contemporaneous witness statements were taken from the Claimant and Mr King at the time.

The Tribunal found that there was a reasonable explanation for the Claimant not having brought proceedings in time and why the Claimant brought them when he did. The Claimant was prepared to let matters rest in July 2019, but Mr King’s subsequent actions led him to resurrect the matter as he did. In the circumstances, it was held that the balance of prejudice favoured the Claimant.

The complaints of harassment related to age and sex arising out of the incident of 25 March 2021 were not successful, as the Tribunal was unable to conclude that the words “old bald”’ or even “bald” were used.

Comment

An employee is subjected to harassment under s.26 (1) of the Equality Act 2010, if a person engages in any unwanted conduct related to a relevant protected characteristic and the conduct has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. In this case, the use of the word “bald” had that effect on the Claimant and was related to the fact that he was male.

In deciding whether the conduct has that effect, the perception of the complainant, other circumstances of the case and whether it is reasonable for the conduct to have that effect must all be taken into account. Where a link is not obvious, a Tribunal may need to analyse the precise words used, together with the context, in order to establish whether there is any negative association between conduct and the protected characteristic.

The Tribunal concluded in this case that baldness is much more prevalent in men than women. They found it to be inherently related to sex and in contrast, it was accepted that baldness affects (predominantly) adult males of all ages so is inherently not a characteristic of age. A comparison was made to an Employment Appeal Tribunal case where it was held that a woman had been discriminated against on the grounds of sex when a manager made a single comment to her about the size of her breasts. The case referred to was Insitu Cleaning Co Limited v Heads [1995] which arose before the enactment of the law of harassment and therefore had to be brought as one of sex discrimination.

If you have any queries in relation to discrimination, harassment or would like to discuss any training requirements please contact our employment team on 01228 552600 or 01524 548494.

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

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