Derogatory Comment about Baldness was "related to sex"

This is an interesting decision in the recent case of Finn v (1) British Bung Manufacturing Co Ltd (2) King [2023].

Mr Finn worked for the first respondent in a predominantly male environment where ‘industrial language’ was commonplace. Following an altercation between Mr Finn and Mr King, Mr King called Mr Finn a ‘bald c**t’ and threatened him with physical violence. Mr Finn was later dismissed. Mr Finn brought claims including a claim of sex-related harassment in relation to Mr King’s comment referencing his baldness.

The tribunal found that while industrial language was commonplace, Mr King had crossed the line by making remarks personal to Mr Finn about his appearance. The conduct was therefore unwanted. The words were said with the purpose of violating Mr Finn’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him. The tribunal found for Mr Finn on all claims, stating in relation to the harassment claim that there is a connection between the word ‘bald’ on the one hand and the protected characteristic of sex on the other. While the tribunal acknowledged that women as well as men may be bald, baldness is much more prevalent in men. Therefore, the tribunal found it to be inherently related to sex.

The respondents appealed, arguing that in order to be related to sex, the harassment would have to apply to that sex to the exclusion of the other and as both men and women could suffer from baldness, the tribunal’s decision could not stand.

Dismissing the appeal, the EAT held that there was no authority for the proposition that, in order for unwanted conduct to relate to sex, it must relate to a matter which is both inherent in the gender in question and in no-one of the opposite gender. That argument ran contrary to the purpose of s.26 Equality Act 2010.

Source: Craig Ludlow, 3PB

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