Knightly v Chelsea & Westminster Hospital NHS Trust - discrimination: harassment

An employment tribunal has concluded that calling an employee “bald” amounts to unlawful harassment.

LAW

Equality Act 2010

Section 26: A person (A) harasses another (B) if—

  1. A engages in unwanted conduct related to a relevant protected characteristic, and
  2. the conduct has the purpose or effect of—
    1. violating B's dignity, or
    2. creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Two tests need to be met for the conduct to amount to harassment:

  1. The unwanted conduct in question must have the purpose or effect of violating the claimant’s dignity or creating an intimidating etc environment for him. Conduct that is intended to have that effect will be unlawful even if it does not in fact have this effect. Conduct that in fact does have that effect will be unlawful even if that was not the intention.
  2. The conduct in question must relate to a relevant protected characteristic. Where a direct reference is made to an employee’s protected characteristic the necessary link will usually be clearly established. Where the link between the conduct and the protected characteristic is less obvious then Tribunals may need to analyse the precise words used, together with the context, in order to establish whether there is any negative association between the two.

FACTS

The claimant was employed as an electrician and had worked for the respondent in a factory from September 1997 until May 2021 when he was dismissed without notice. He later went on to raise claims for unfair and wrongful dismissal, detriment, harassment and victimisation. All claims other than the claim for harassment (related to the protected characteristic of sex) were dismissed.

Prior to his dismissal, the claimant was involved with an altercation with the factory supervisor, during which the supervisor called him a “bald c***.” The argument left the claimant “fearful for (his) personal safety and “created an intimidating environment for him.”

The employment tribunal (ET) had to consider whether being bald was inherently linked to the male sex and, if so, whether the comment violated his dignity or created a hostile, intimidating, degrading, humiliating or offensive environment.

EMPLOYMENT TRIBUNAL (ET)

The ET found that the claimant wasn’t offended by the “industrial language” used (i.e. the use of the expletive) but was offended by being called bald. The ET were satisfied that the conduct towards the claimant (calling him bald) was unwelcome and uninvited, so therefore unwanted. It determined that it was difficult to conclude other than that the supervisor called him bald with the purpose of violating the claimant’s dignity and creating a humiliating environment for him. As a result, the first test was met.

The ET then considered the issue over whether the expression “bald c***) is harassment related to sex. In its judgement, it concluded that there was a connection between being bald and the protected characteristic of sex. It stated that baldness is much more prevalent in men than in women, so found it to be inherently related to sex.

Since both tests were met, the harassment claim succeeded.

Note for employers 

It is interesting to note that the tribunal panel was made up on three bald men; this is pointed out in the judgement: “However, as all three members of the Tribunal will vouchsafe, baldness is much more prevalent in men than women. We find it to be inherently related to sex.” It remains to be seen whether the case will be appealed, either on the grounds of bias, or to argue that the harassment tests weren’t met.

Nonetheless, employers should keep in mind that any offensive comments linked to a protective characteristic could lead to successful harassment claims. To minimise the risk of such, employers should pro-actively take reasonable steps to prevent harassment occurring in the first place. This can be done by having equality policies; communicating a zero-tolerance stance against any form of bullying, discrimination and harassment; introducing robust channels to report allegations, which employees are aware of; training managers on how to effectively respond to allegations; treating allegations seriously and investigating them fully; and taking appropriate action against any perpetrators.

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