In this employment tribunal case, the employee had an altercation with his shift supervisor. During this altercation, the supervisor called the claimant “a bald c***” and threatened to ‘deck’ him. The employee decided that he would tell management to exercise leniency towards the supervisor to ‘draw a line under the matter’ and ‘move on’. The employer issued a written warning against the supervisor. The employee had a further disagreement with his supervisor on a different occasion and insisted that his employer dismiss the supervisor.
The employee was later dismissed for gross misconduct in relation to a different matter. The employee brought a number of claims against his employer, including a successful claim of sex-based harassment on the basis that the supervisor’s earlier insult in relation to him being bald amounted to harassment on the basis of his sex. The employer appealed against the employment tribunal’s ruling.
On appeal, the Employment Appeal Tribunal rejected the appeal and upheld the tribunal’s ruling. In particular, the Employment Appeal Tribunal rejected the employer’s argument that because women may also experience baldness for medical reasons, harassment based on baldness could not amount to sex-based harassment against men. However, the Employment Appeal Tribunal rejected this argument as it was not supported by any previous caselaw or consistent with the purpose of the Equality Act 2010.
In concluding that baldness is more prevalent in men, the employment tribunal was recognising that men (as was the case for the employee here) are more likely to suffer harassment due to baldness than women. As such, baldness is inherently related to being male. Taking into account how the employee perceived the insult (for him the baldness insult, rather than the swearing insult, ‘crossed the line’), the other circumstances of the case (the supervisor had admitted that he had intended to threaten and insult the employee in using these words) and whether it was reasonable for the insult to have that effect, the tribunal had been entitled to find that the employee had suffered sex-based harassment.
Commentary
This case is a reminder that in workplaces where using swear words or more coarse language is customary and considered part of general workplace ‘banter’ (as was the case here), insults based on protected characteristics (such as sex, age or race), or which amount to sexual harassment, may be unlawful harassment and expose employers to claims or grievances under the Equality Act on this basis.
Employers should also bear in mind that since 26 October 2024, a new duty to take reasonable steps to prevent sexual harassment in the workplace applies in England, Scotland and Wales. See the fact sheet on ‘sexual harassment’ on the FSB Legal and Business Hub for guidance on this.