Baldness is a fact of life for many men. While in some cultures it has been seen as a sign of wisdom, for many in the UK today it is a sensitive issue which sees thousands of men seek treatment for hair loss in an effort to retain a perceived sense of youth, virility, and attractiveness. To underline this point, it has been reported that on average 180,000 people travel to Turkey for hair loss treatment every year.
But while hair loss has been a sensitive topic for a long time (remember the combover?), seldom before has it been taken seriously as a form of discrimination in the workplace. Until now, that is.
In this article, we will take a look at why a man who was called ‘bald’ at work is in line to receive compensation for sex-related harassment as well as analysing the challenges employers may face when it comes to minimising such risks.
Finn v The British Bung Manufacturing Company Ltd and King
In the case of Finn v The British Bung Manufacturing Company Ltd and King, the claimant was called a “bald c***” by his factory supervisor, a slur which preceded threats of violence towards the claimant.
Mr Finn subsequently brought a claim under the Equality Act 2010, which prohibits acts of harassment within the workplace related to protected characteristics including age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.
Under the Equality Act, the definition of harassment is as such: “a person harasses another if they engage in unwanted conduct related to a relevant protected characteristic, and that conduct has the purpose or effect of either violating the other’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”.
The tribunal found that according to Mr King himself, it was his intention to threaten the claimant, Mr Finn, and to insult him.
But why did the tribunal decide it was sex-related harassment?
The decision of the tribunal in deciding that the claimant received sex-related harassment came down to a simple application of logic.
According to the tribunal, the claimant was called bald with the purpose of “violating [Finn’s] dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him,” and the references to the claimant’s baldness was therefore determined to be sex-based harassment, but not ‘sexual harassment’ as a number of media outlets mistakenly reported at the time.
The tribunal found that while there was no overt link between the word ‘bald’ and the protected characteristic of sex, because men are more likely than women to go bald this means that it qualifies as sex-related harassment. Finn now stands to receive compensation, which will be decided at a later date.
What can you do as an employer to minimise liability risks from employees?
Under the Equality Act 2010, anything done by an employee is also done by an employer, which means that an employer will also be liable for harassment by one of its employees.
It is therefore important to be well aware of discrimination laws and to prevent discrimination occurring in the workplace as an employer.
Types of discrimination
There are a number of forms discrimination can take in the workplace. For instance, these include:
- Direct discrimination – when an employee is treated unfavourably based on a protected characteristic referred to in the list above
- Indirect discrimination – this is where a policy is applied to everyone in a company, but disproportionately affects a protected characteristic in a negative way. Employers can overcome this by proving that the policy is justified for the business and could not be applied in a less discriminatory way. This is known as showing objective justification
- Harassment – (the form of discrimination discussed in this article) occurs when an employee is intimidated, hurt or upset by one of their colleagues because of something which relates to a protected characteristic
- Victimisation – this is when an employee suffers negative treatment because they made a discrimination complaint or helped someone else to make one
- Discrimination arising from disability – when a person is treated unfavourably as a result of something which is related to their disability
- Failure to make reasonable adjustments for a disabled employee – this is when a practise, policy or rule which is applied by an employer places a disabled employee at a substantial disadvantage compared to their colleagues and steps aren’t taken to avoid the disadvantage
As well as protecting employees, discrimination legislation also protects the following:
- Job applicants
- Contract workers, including agency workers
- Police officers and applicants to join the police
- Partners and those seeking partnership in a firm (including an LLP)
- Barristers and trainee advocates
In the meantime, an employer also needs to have relevant policies to deal with harassment at workplace. Such policies have to be circulated to employees, regularly reviewed, updated and enforced against any breach. Employees also needs to be adequately trained. Unless these actions have been taken, it is unlikely that an employer will have a reasonable defence when facing such harassment claim.
As accusations of discrimination can be an unpleasant experience for all parties involved, not least the person discriminated against, it can often be best to avoid legal action and employment tribunals. The fallout of a discrimination accusation can be lengthy, with significant costs incurred.
This case underlines how important it is for employers to take workplace discrimination seriously. However, the low bar which this case sets by linking baldness with sex-related harassment threatens to potentially trivialise discrimination which occurs in more serious situations.
While this could help more genuine victims of discrimination in the workplace, high profile cases which are ridiculed on social media such as this one threaten to give ammunition to the proponents of the view that discrimination laws are an example of “political correctness gone mad”.
For employers, it further underlines how important it is to have clear policies on bullying and harassment at work to avoid scenarios like this one. There is therefore a fine line between having a company culture which is open and collegiate and one in which “banter” crosses the line into discrimination.
It will be interesting to see what impact, if any, this case has on other discrimination claims in the future.
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