Whatever your view on so-called workplace "banter", calling someone a "bald ****" at work clearly crosses more than a few lines. But is it sex-related harassment? An Employment Tribunal has just ruled that it was. The unfortunate remark was made to a man who worked for a manufacturing business, in the course of a heated discussion. He brought claims in the Employment Tribunal, including a claims for age-related and sex-related harassment. Slightly surprisingly, his age-related harassment claim failed, but his sex-related harassment claim succeeded, on the basis that baldness is much more prevalent in men than women and so the offensive remark was inherently related to his sex.
Viewers of the 2022 Oscar ceremony will be well aware that hair loss isn't only a male problem, but this is a good example of a Tribunal taking a common-sense view. In a well-known previous case, commenting on the size of a woman's breasts was held to be sex discrimination, even though some men can develop breasts due to medical conditions - the remark was inherently related to her sex. The Tribunal took the view that offensive remarks about baldness fell into the same category - indeed, the all-male panel which heard the case ruefully noted their own follicular challenges.
The reality is that any offensive remarks about colleagues run the risk of an Employment Tribunal claim in some form, so there's nothing particularly new here. Because there's no freestanding claim in law for workplace bullying, claimants often have to bring claims under anti-discrimination law (unless they are prepared to resign and claim constructive unfair dismissal, or can prove they've suffered personal injury and so pursue a PI claim). So it was logical for the Claimant in this case to argue that the remark was related to his sex, as he might otherwise have had no legal remedy. The remark was obviously offensive, given the foul language, and appears to have been intended to be so, so it's not surprising that the Tribunal was inclined to find in his favour.
The lesson for employers is simple: offensive remarks of any kind can lead to Tribunal claims, so make sure you have clear policies on workplace bullying and harassment, and ensure they are properly enforced.
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