Under the Equality Act, employees are protected from discrimination relating to (among other protected characteristics) age and sex.
In a recent case, Tony Finn claimed that he had been a victim of sex harassment in the work place after his supervisor called him a ‘bald c**t’. The Claimant also claimed age discrimination as he originally said he was called an ‘old bald c**t’ but the tribunal did not accept this had been said. The claimant was more upset about the comments about his appearance than the use of the strong ‘Anglo-Saxon’ language.
The newspapers reporting this case used the terms ‘sex harassment’ and sexual harassment’ interchangeably but the two are very distinct and are covered separately under the Equality Act.
Sex harassment occurs where there is unwanted conduct related to sex whereas sexual harassment occurs where a person engages in unwanted conduct of a sexual nature or refuses to engage in sexual conduct (like the Harvey Weinstein cases). Both must have the purpose or effect of either violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. However, sex harassment is related to someone’s sex and sexual harassment is related to sexual conduct.
This case is related to sex not sexuality; it is statistically more likely for men to be bald than woman – although it was accepted that woman do suffer hair loss –and, as such, making a degrading comment about Mr Finn’s appearance was related to his sex. The analogy quoted of being akin to commenting on woman’s breasts is related to the fact that woman (and not men) have breasts – although again it was conceded that some men have breasts. The ruling was made by panel of three men who bemoaned their own lack of hair. The three-man panel ruled that calling someone bald would not just amount to an insult, but could amount to harassment and that the comment on the baldness was not dissimilar to commenting on a woman’s breast, which would be discrimination of sex, as found in Insitu Cleaning Co Limited v Heads  IRLR, 4, EAT.
It is not, as some newspapers suggested, a claim relating to sexual harassment – the court are not saying that a bald head is a sexual part of the body.
Mr Finn claimed sex discrimination/harassment not sexual harassment.
This raises the bar on discrimination claims by employees. Whereas simply bullying is not discriminatory unless it is related to one of the protected characteristics covered under the Equality Act, it now seems that referring to a man’s baldness in the same way that commenting on a woman’s breasts is sex discrimination. This shows how easy it is to fall foul of discrimination in the work place and ensure staff are fully aware of the boundaries. If you think that this affects you and your business, please feel free to get in touch with Nicole Humphreys by telephone 01273 447 065, email [email protected] or click here to contact us via our website.