Calling someone ‘bald’ amounts to sexual harassment
An Employment Tribunal has found that an employee was subjected to sexual harassment when a manager made a comment about his baldness.
Mr Finn was an employee of the British Bung Company from 22 September 1997 until 25 May 2021 and was employed as an electrician. Mr Finn had an unblemished disciplinary record.
Mr Finn brought claims against his employer for ordinary unfair dismissal, automatic unfair dismissal, sexual harassment and victimisation after he had a clash with a supervisor about a piece of equipment. Towards the end of July 2019 Mr Finn was working on a machine that was in need of specialist repair so it had been covered. Mr Finn’s supervisor, Mr King, had taken the covers off and in an altercation between the two it was alleged that Mr King called Mr Finn a “bald ****” and threatened to hit him. This altercation was reported to management but was not dealt with correctly.
Both Mr Finn and Mr King continued to work together until another incident which took place in late March 2021. Mr Finn had approached Mr King to turn off a machine ready for Mr Finn to complete a modification. Mr King did this and then returned with his supervisor Mr Hardcastle. There was an argument between the three colleagues as to whether the machine required the modification. This became heated and Mr King threatened Mr Finn with physical violence. Mr Finn went into the managers’ office and told them that he could not work with Mr King and then stormed out of the building.
Mr Finn’s employer did not contact him when he did not return to work and it was only upon Mr Finn contacting his employer that the company commenced an investigation into the events of March 2021.
Mr Finn was invited to an investigatory meeting on 13 April 2021 which he attended with a witness statement. This statement was drafted by Mr Finn’s son who was a serving police officer. The statement was written on West Yorkshire Police headed paper. The statement referred to the incidents in both 2019 and 2021. When questioned about this by his employer, Mr Finn informed his employer that the statement had not been made formally to the police and that he had sought assistance from his son. Mr Finn was asked to leave the premises and was subsequently suspended on full pay pending a disciplinary hearing.
Mr Finn attended a disciplinary hearing at which he was asked to apologise for his actions on 13 April 2021; namely producing a statement on police notepaper. Mr Finn did not do so. The hearing was adjourned and Mr Finn was told that his employer had contacted West Yorkshire Police and would wait to deliver the outcome of the disciplinary until they heard from them. Mr Finn was dismissed for gross misconduct on 25 May 2021 via email. The employer had not heard back from the Police when they dismissed Mr Finn.
Mr Finn appealed against his dismissal and this was dismissed.
Employment tribunal findings
The Employment Tribunal held that Mr Finn had been unfairly dismissed. This was because he had been led to believe in the original disciplinary hearing that the employer would wait for the outcome of the Police investigation before making a decision on his employment. This did not happen and the employer had acted in bad faith. The Tribunal stated that, had the company waited for the Police investigation (concluded on 30 September 2021) Mr Finn would have been dismissed in any event by 15 October 2021. This is because his actions were capable of destroying the trust and confidence between the parties. The Tribunal ordered that any compensation awarded to the Claimant be reduced by 50% (in respect of the basic award) and 75% (in respect of the compensatory award) due to the fact that Mr Finn did not help himself in (1) producing a statement on police headed notepaper; and (2) not apologising for this when given the opportunity. The Tribunal remarked that Mr Finn’s actions were “foolish”.
The Tribunal also held that Mr Finn has been subjected to sexual harassment when, in July 2019, Mr King had called the claimant a “bald ****”. The Tribunal held that Mr King had “crossed a line” with the remarks he made and held that Mr King’s intention was to threaten and insult Mr Finn. The Tribunal held that the conduct amounted to sexual harassment because “baldness is much more prevalent in men than women” and calling someone bald is “inherently related to sex”. The Tribunal considered that the incident in March 2021 could not amount to sexual harassment as the word “bald” was not said.
Claims for harassment must be brought within 3 months of the last act of harassment. The Tribunal held that the 2019 act was a one off act of harassment. The Tribunal held that it was just and equitable in this case to extend the time limit. This is because it was in the public interest that the wrongdoers were held to account. The Tribunal held that there was no prejudice to the employer by extending the time limit in this case.
This case shows that the scope for harassment claims, particularly in respect of sex, is wide. Employers should be cautious when matters of this nature arise in the workplace and should investigate and be proactive in these situations. If employers do not do so they could face costly claims, even when the acts of harassment occur years previously.
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