Insults, breasts and bald decision?
Harassment and sex in the employment tribunal
Insitu Cleaning Co Limited v Mrs Heads [1995] IRLR, 4, EAT. (“Hiya, big tts”)
British Bung and Mr King v Mr Finn [2023] EAT 165 (“bald cnt”)
Women have breasts
In the well known case of Mrs Heads v Insitu Cleaning, employee Mr Brown entered a meeting and greeted his colleague, Mrs Heads, with the words “Hiya, big t*ts”. Mrs Heads was a woman and was much older than Mr Brown. This was after the enactment of the law of sex discrimination but before the law of harassment. Not too surprisingly, the tribunal found the comment to amount to sex discrimination.
The EAT rejected the appellant’s argument that the comment was not sex related. The comment was not like a one about a bald head or a beard but directly related to a woman’s sex. (Insitu Cleaning v Ms Heads [1995] IRLR 4 EAT)
Perfectly sensible so far. Fast forward to the present day…
Do men have hair?
In Mr Finn v British Bung and Mr King, one of the complaints was that on 24 July 2019, Mr King called the claimant a “bald c*nt”, thus harassing him in relation to sex and age.
One might think that, if anything, baldness is more readily associated with a certain age and maturity as opposed to a certain sex. But the tribunal did not think so:
- In our judgment, there is a connection between the word “bald” on the one hand and the protected characteristic of sex on the other. Miss Churchhouse [respondent’s counsel] was right to submit that women as well as men may be bald. 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. (In contrast, we accept that baldness affects (predominantly) adult males of all ages so is inherently not a characteristic of age).
… - …it is much more likely that a person on the receiving end of a remark such as that made by Mr King would be male. Mr King made the remark with a view to hurting the claimant commenting on his appearance which is often found amongst men. The tribunal therefore determines that by referring to the claimant as a “bald cunt” on 24 July 2019 Mr King’s conduct … related to the claimant’s sex.
Do men have breasts?
In reaching that conclusion, the tribunal also considered a particular argument at paragraph 237. The argument was that “bald cnt” cannot relate to sex just because women could be bald too (for example women with certain medical conditions). The tribunal says such an argument is absurd because such an argument would mean “Hiya, big tts” cannot relate to sex just because (wait for it…) men could have a medical condition that causes their chests to develop.
Am I splitting hairs?
While bald men and hirsute women might rejoice, I am pulling my hair out.
Statistically there is always prevalence of either sex over the other for everything under the sun, but surely not all conduct is about sex, nor could Parliament have intended that all conduct is about sex.
I would suggest that what matters is not whether a given feature is “more prevalent” in those with a particular characteristic, but rather, did the conduct i.e. the making of comment, relate to age/sex in the circumstances. Even if the ET is right that baldness is inherently related to sex, that cannot be determinative of whether the conduct is sufficiently connected to sex.
EAT with their appeal hat on
The EAT found that the decision was not perverse (British Bung and Mr King v Mr Finn [2023] EAT 165), and it is interesting to note the respondent’s submission received the hairdryer treatment:
“23. The Respondent’s submission that, in order for the unwanted conduct to relate to sex, it must relate to a matter which is both inherent in the gender in question and in no-one of the opposite gender [my emphasis] was not rooted in authority, and in my judgment, runs contrary to the purpose of section 26. In concluding, rightly, that baldness is more prevalent in men, the Tribunal was not importing questions of disparate adverse impact into its reasoning: rather it was recognising the fact that the characteristic by reference to which Mr King had chosen to abuse the Claimant was more prevalent in people of the Claimant’s gender, more likely to be directed at such people, and, as such, inherently related to sex.”
Quite rightly the EAT invited parties to consider Bakkali v Greater Manchester Buses South [2008] ICR 1481 where the EAT, per LJ Slade, commented at paragraph 31:
…A decision on whether conduct is related such a characteristic requires a broader enquiry. In my judgment, the change in the statutory ingredients of harassment requires a more intense focus on the context of the offending words or behaviour.
Notwithstanding that authority, however, the EAT concluded that the finding was one that was open to the tribunal:
- …In my judgment, in a case such as this, the context of a remark said to constitute harassment … encompasses the prevalence amongst persons having the relevant protected characteristic of the feature … it is clear that that is the analysis in which the Tribunal engaged … [when saying, among other things that] … “much more likely that a person on the receiving end of a remark such as that made by Mr King would be male … commenting on his appearance, which is often found amongst men”. Those were findings which it was open to the Tribunal to make….
Closing thoughts
I would have to disagree with the ET that a higher prevalence of baldness in men gave the conduct the requisite connection to sex.
No comparative dermatology was necessary. There should be more reasoned analysis of the context as suggested by Bakkali in order to answer the question:
in the context at the time, did the conduct of calling the claimant a “bald c*nt” really relate to sex? In other words, did that conduct have a connection to sex?
The answer would have been no.
