You have probably read or heard about the recent case in which a former employee won an Employment Tribunal claim against his former employer after his colleague called him a ‘bald c**t’. Headlines in the media screamed that the Employment Tribunal found the comment to amount to sexual harassment, which inevitably led the general public to question how that could possibly be the case.
Being a bald man himself, the writer of this article can attest to the fact that rarely has being follically challenged attracted unwanted attention of a sexual nature – although he has been prone to the odd compliment as to how shiny his head is, and always took such comments in good spirits.
In fact, in what was a much more complicated case than simply considering this one comment, the employee was found to have been subject to unwanted conduct which was related to his sex of being male. In addition the employee won claims for unfair dismissal and wrongful dismissal.
This distinction between ‘harassment related to sex’ and ‘sexual harassment’ is an important distinction which understandably causes confusion.
- Sexual harassment is when somebody engages in unwanted conduct of a sexual nature.
- Harassment related to sex is when somebody inflicts on another, unwanted conduct connected to the protected characteristic of ‘sex’. Indeed, such harassment could be connected to one of the other protected characteristics listed in the Equality Act, such as age, race, or sexual orientation.
The comment in the present case which probably led to the confusion was the judge comparing it to remarking on the size of a woman’s breasts. It said that commenting on the size of breasts is something much more likely to be directed towards a female. Likewise it stated that referencing baldness was more likely to be inflicted on a male.
Clearly comments connected to the size of breasts has potential to amount to sexual harassment also, whereas saying something about being bald probably wouldn’t be. A historic case had also considered the same point and said it was ridiculous to compare the two.
Amusingly, the judge and two panel members making the decision here were also bald, and so had possibly been subject to their fair share of ridicule in their time.
This is a helpful judgment – mainly because the writer has been able to point out to his son that calling him a ‘slap head’ and pretending to polish his head is unwanted conduct which is quite clearly no longer acceptable!
On a serious point, employers should ensure that they have clear policies in place to prevent such unwanted conduct. Providing training to employees on the Equality Act is also highly recommended. Stamping out offensive behaviour in the workplace is so important because like the present case, throwaway comments can come back to haunt the employer and, had it been able to show it had done everything it could to stamp out discriminatory comments, it could have limited its liability.