Bald Facts Only

Over the last few days there has been a lot of comment over an Employment Tribunal’s decision that a reference to an employee’s baldness was discriminatory, some of it ill-informed. At the outset of this article, I will say I disagree with the decision that there was harassment in the case but think the case is helpful to understand what the law of harassment means in an Equality Act 2010 context (which is different to other harassment provisions in law) and what relevance it has for workers and trade union reps.

In particular, the Equality Act sets out three different variations on what harassment is at sections 26(1), 26(2), and 26(3) of the Act; this post relates to 26(1) only. For those wanting to read the judgment it is available here.

The background facts, and please be aware this includes offensive language, so read on at your discretion, can be briefly stated. Insofar as relevant the complaint that is relevant was a complaint that the claimant was subjected to harassment contrary to section 26(1) of the Equality Act 2010 that was related to his sex. He also claimed unfair dismissal (which he succeeded in as well) and other automatic and Equality Act complaints (which he lost). I think it’s helpful to highlight that fact given the comments of frivolous litigation that have been raised.

The claimant was dismissed on 25 May 2021, a dismissal that was found to be unfair on procedural grounds because the employer had committed to waiting for the conclusion of a police investigation before determining the disciplinary investigation against the claimant.

However, prior to that dismissal the claimant alleged that on two occasions, firstly on 24 July 2019 and, secondly on 25 March 2021 the claimant’s supervisor Mr King had called the claimant a “bald cunt.” It is in respect to these statements that the claimant contended he had been subject to harassment related to sex. In its findings of fact that tribunal determined the there was no such statement on 25 March 2021 which left the sole issue whether there was a one off instance of harassment related to sex because of the 24 July 2019 statement.

The tribunal found that on 24 July 2019 the claimant’s supervisor, Mr King (who was also the second respondent) called the claimant a “bald cunt” and thereafter threatened to know the claimant out. Remarkably, and I wonder if this had an implicit influence in the case, the employer responded to this by taking absolutely no disciplinary action against Mr King whom had, regardless of whether related to sex, engaged it conduct that was likely to be gross misconduct – many people have been fairly dismissed for much less serious infractions.   

The Law

Section 26(1) defines the main (and most common of the Equality Act’s three types of harassment) as being conduct:

  • That is related to a protected characteristic,
  • That is unwanted
  • Has the purpose or effect of violating the recipient’s dignity or creating an intimidating, degrading, humiliating or offensive environment for the recipient.  

Related to …

The key issue in this case was the question of whether the reference to being “bald” was related to sex.

Prior to the Equality Act there was still an anti-harassment provision in discrimination law but the wording was different. The previous iteration of the law did not refer to a need to be related to the protected characteristic but to be “on the grounds of” the protected characteristic – this was found to be inadequate to implement EU law – Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] EWHC 483 (Admin). They were right to do so as the previous ground missed some causes of action and made the dividing line between harassment line and direct discrimination pretty narrow.

The outcome was the current law when the Equality Act came into operation with a looser connection to the protected characteristic. The EHRC Employment Code emphasises this looser connection by explaining that

Unwanted conduct ‘related to’ a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic.

EHRC Code, para 7.9

In Institu Cleaning Co Ltd v Heads (1995) – a decision relied upon in this case – the EAT found that an intention to cause embarrassment to another person because of physical characteristics that were related to sex would potentially be prohibited conduct (in that case the comment was “hi, big tits”. It is because baldness was found to be a physical feature related to maleness in particular (although, of course, not exclusively) that the tribunal found the test was satisfied.

My comments on decision

The tribunal comments on how baldness relates to the male sex are instructive to quote at length. The tribunal acknowledged the issue was “difficult” (para 161) but summarises its reasoning:

In Insitu Cleaning Co Limited v Heads [1995] IRLR, 4, EAT, it was held that a woman had been sexually discriminated against when a manager made a single comment to her about the size of her breasts. (The case arose before the enactment of the law of harassment and therefore had to be brought as one of sex discrimination). The remark made was “hiya, big tits.”

It may be thought that such a remark is inherently related to sex. However, a similar comment may be made to men with the condition of gynaecomastia. Upon Miss Churchhouse’s analysis, therefore, were a complaint of harassment related to sex to be brought today by an individual in the position of the claimant in the Insitu case, it would fail upon the basis that it is possible for men with that medical condition to be subjected to the same remark (just as bald women may be subject to comments such as those made by Mr King) albeit that far more women than men will be liable to such harassing treatment.

In our judgment, this is not the correct analysis and that the proper analysis is to approach matters purposively. The object of the 2010 Act after all is to proscribe harassment within the workplace. It is much more likely that a person on the receiving end of a comment such as that which was made in the Insitu case would be female. So too, it is much more likely that a person on the receiving end of a remark such as that made by Mr King would be male. Mr King made the remark with a view to hurting the claimant by commenting on his appearance which is often found amongst men. The Tribunal therefore determines that by referring to the claimant as a “bald cunt” on 24 July 2019 Mr King’s conduct was unwanted, it was a violation of the claimant’s dignity, it created an intimidating etc environment for him, it was done for that purpose, and it related to the claimant’s sex.

I think the basic relatedness of baldness to maleness is a reasonable conclusion. The case does not require any equivalency between the same, the decision does not say calling a male “bald” is the same as calling a female “big tits”, and I expect the differences will be reflected in the compensation award.

However in respect to the ‘related to’ issue just before writing this piece a targeted Facebook ad popped up whilst scrolling saying:

Treat hair loss at any stage, no matter how much hair has been lost. Get effective hair loss treatment from as little as 70p per day.

🏆 Trusted by millions of men worldwide

👨🏼‍⚕ Skip the pharmacy queues

🤫 Discreet delivery through your letterbox.

This seems to indicate that in terms of marketing hair loss products the advertiser takes it as read baldness is more of a male issue, and one they are embarrassed about, hence the need for discretion. Btw, why I’m targeted I don’t know – I am not bald!

I am not strongly against this tribunal’s decision, as the above shows the legal test for related to male sex seems strong but I am still not convinced overall.

First, Mr King called the claimant – I think we can assume in the context aggressively – “a cunt” and then threatened physical violence. That was deplorable and blameworthy conduct by Mr King and, vicariously, by the employer.  As I set out below, I wish there was a meaningful remedy for that type of conduct but there isn’t, hence the resort to anti-harassment law. Whether a respondent is found liable for harassment also involves an objective assessment (under section 26(4) I am unconvinced that objectively the calling someone a bald cunt is materially different from calling them a cunt. That is an “other circumstances of the case” – under s.26(4)(b) and (c) the tribunal was obliged to consider that I am not sure is adequately addressed.  Had the comment been just one of baldness would the claim have been made (evidently not because 18 months passed without reference to an ET) until issue raised after unconnected dismissal.

In  Richmond Pharmacology v Dhawliwal (2009), at 22, the following comment was made by the EAT:

Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. Whilst it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds by the cognate legislation to which we have referred); it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.

Dhaliwal was not considered by the Tribunal in this case but there is at least a reasonable case that the “bald” comment in isolation – which is the sole basis for the finding – is just such an unfortunate phrase such as Dhaliwal considered.

Second, and related to this first issue, there is a requirement in harassment law generally that the conduct is over a course of time, here the offence was a one-off statement. It is true that in an Equality Act context there is not rule that a one off act cannot be harassment but it is still built into the general assessment that unwanted conduct in that whether there have been previous instances of similar conduct where the displeasure has been communicated – there was none in this case relating to sex.

Third, I think it is noteworthy – though probably supportive of the outcome given the fact that an senior employee had bullied the claimant and threatened violence but declined to take any disciplinary action against the perpetrator even if not strictly relevant – that there is no reference (so far as I can see) to the first respondent’s reasonable steps defence under section 109(4) of the Equality Act.   There is no reference to whether the first respondent raised this defence but it is not recorded in the judgment if they did or why the tribunal rejected this (if relevant).

Fourth, and most importantly, I think this case shines a light on the paucity of accessible remedies a recipient of bullying has in the course of employer. On any view the claimant was subjected to deplorable treatment by his manager, treatment the employer failed to take seriously. I have covered the lack of remedy available to a worker before in bullying cases – because of that lack of remedy it is likely that workers will need to ‘shoe-horn’ bullying cases into a different claim type as I think happened here.

The employment tribunal has not yet determined remedy so will be interesting to see what is awarded, but I think anything above a low-end Vento award will be really generous.

Despite some complaints that this widens the scope of sex harassment then, as a matter of law, I don’t think it does. As a employment tribunal the case has little precedential value and, in any case, the case was decided because of the findings of fact in the case. I do not expect Patrick Stewart et al to be spearheading any equality crusade of the ack of the decision.   

For trade union reps the case is however a good reminder of the looser ‘related to’ test in current harassment claims that provides avenues to challenge some conduct that would have been out of bounds on the earlier on the grounds of test so is one worth being alert to going forward.

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