An employment tribunal has ruled that a workplace insult related to a male employee’s baldness amounted to sex-related harassment.
A recent employment tribunal case has attracted a lot of media attention given the nature of the subject matter and the employment tribunal’s somewhat surprising decision. It has led to some commentators calling for specific statutory protection against bullying in the workplace, rather than requiring the individual to prove in a tribunal that the harassment is related specifically to an individual’s ‘protected characteristic’.
There is generally no specific statutory protection against bullying in the workplace. It is not a standalone claim, although an employee may bring a different claim, including resigning and claiming constructive dismissal in response if the bullying (or an employer’s failure to act in relation to it) amounts to a fundamental breach of trust and confidence). Alternatively, as in this case, employees may bring a claim on the basis that they have been harassed due to a protected characteristic under the Equality Act. This will require the employee to establish a link between the harassment and the relevant protected characteristic.
As with other breaches of the Equality Act, employers are liable for the acts of their employees but may avoid liability for harassment of a member of staff by their employees where they can demonstrate that they took all reasonable steps to prevent the harassment from occurring. As previous caselaw has shown, whilst a certain level of ‘banter’ or foul language may be acceptable to staff, depending on the type and makeup of the workplace, where a line is crossed, this may result in litigation. Even where litigation is avoided, or where the employee does not have grounds to bring a tribunal claim, staff are entitled to work in an environment where their dignity is respected.
The employment tribunal’s ruling
In this employment tribunal case, the employee was employed as an electrician by a small family business for approximately 24 years prior to his dismissal from the business. Most, if not all, of the employees were male.
Prior to the employee’s dismissal for a separate misconduct matter, the employee had an altercation with his shift supervisor. During this altercation, the supervisor called the employee “bald” followed by an expletive and threatened to ‘deck’ him. Following this incident, which the supervisor admitted had taken place, the employee was told by management that the supervisor stated that there were mitigating circumstances in that he was raising a young child on his own and should the employee wish to take matters further this may result in the supervisor losing his job. The employee decided that he would tell management to exercise leniency, to ‘draw a line under the matter’ and ‘move on’. The employer issued a written warning against the supervisor. There was then a further altercation between the employee and the supervisor on a later occasion.
Following the termination of his employment due to an alleged misconduct matter, the employee brought an employment tribunal claim against his employer on a number of grounds, including on the basis that the supervisor’s earlier remarks amounted to harassment.
Whilst bullying in general is not protected under the Equality Act 2010, or other employment legislation, harassment of an employee by an employer based on a ‘protected characteristic’ is made unlawful within the under the Equality Act. A serious one-off incident can amount to harassment for this purpose.
Under the Equality Act, a person harasses another if they engage in unwanted conduct related to a ‘protected characteristic’ (such as age or sex) and that conduct has the purpose or effect of violating the other’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. In deciding whether the conduct has that effect, the perception of the claimant, the other circumstances of the case and whether it is reasonable for the conduct to have that effect must all be taken into account by the employment tribunal. It is not necessary for the worker to show that another person was, or would have been, treated more favourably. Instead, they have to establish a link between the harassment and the relevant protected characteristic.
The employment tribunal considered the difficult issue as to whether calling someone “bald”, followed by an expletive, was harassment related to sex. Unlike, for example, where calling a person “old” in an offensive manner may amount to harassment related to age due to the actual use of the word “old”, in some cases, as in this case, the link between the words used and the protected characteristic is less obvious, such that the tribunal will need to analyse the precise words used, together with the context, to determine whether it does relate to a protected characteristic.
The employment tribunal noted that whilst the use of strong language was commonplace on the factory floor (and it was not the use of profanities which was the issue), in relation to this incident, the tribunal found that the supervisor had crossed the line by making remarks personal to the employee about his appearance, which the employee clearly found offensive.
The all-male employment tribunal panel in making their judgment referred to the fact of their own baldness and concluded that there is a connection between the word “bald” on the one hand and the protected characteristic of sex on the other. Whilst women as well as men may be bald, the tribunal noted that baldness is much more prevalent in men than women. For this reason, the tribunal found baldness to be inherently related to sex.
Somewhat surprisingly, the tribunal concluded that the insult did not relate to the protected characteristic of age given that the supervisor did not use the word “old.” The tribunal concluded that as baldness affects (predominantly) adult males of all ages it is inherently not a characteristic of age.