Bald, ginger, fat – what next for equality laws?

More than three years ago, Gary Lineker joked at the start of Match of the Day, at the expense of his co-hosts Alan Shearer and Danny Murphy, that “It’s [been] a strong start to the Premier League season…Real hair-raising times…unless you’re Alan Shearer and Danny Murphy”.  This resulted in a slew of complaints to the BBC; a backlash on social media; and then prompted a debate about whether political correctness was going too far and whether we as a nation were losing our sense of humour. Now, a bald man has won a discrimination claim in the Employment Tribunal that a comment about his baldness is harassment related to sex.

Harassment related to sex

Some might say we are splitting hairs but, it is important to note that there is a difference between sexual harassment, which requires unwanted conduct of a sexual nature, and harassment related to sex which was found in this case. This was not a case of sexual harassment.

The law on harassment is very wide and captures a huge range of behaviour and comments in the workplace.  What to one person may seem an innocent comment or a joke can to others be offensive.  While some men do not take offence at jokes about their lack of hair, for others hair loss is a sensitive issue, affecting their perception of themselves, their self-confidence and their mental health.

The comment was clearly offensive and intended to hurt.  While both men and women can be bald, the Employment Tribunal held that, as baldness is more prevalent in men than women, the comment was inherently related to the individual’s sex. So, it is harassment related to sex.

What about other Equality Act protected characteristics?

Interestingly, the Employment Tribunal also held that baldness affects (predominantly) adult males of all ages so is inherently not a characteristic of age.

Had the comment been made about to a man or a woman with alopecia or undergoing cancer treatment, that would have been disability discrimination.

Similarly, had the comment been made to a Buddhist or a Muslim man who had shaved their head in an act of faith, the comment could be religious belief discrimination.

While the decision gives protection to bald men, what about other characteristics?

We have seen a significant increase in claims brought before the Employment Tribunals relating to the less favourable treatment of women experiencing the menopause.  At present, claims are being brought using the protected characteristics of sex, age and disability.

While many progressive employers have introduced menopause policies and support mechanisms for women experiencing the menopause, at present the law does not adequately protect them. Our article about this can be found here.  There is a growing movement in favour of updating the law and we would hope that, in the next few years, a Government will legislate to introduce statutory protections.

A few years ago, we wrote an article about a person who lost a claim of discrimination after being called a “fat, ginger pikey” by a colleague.  That case turned on its facts but, had he been overweight because of a disability, his claim may well have succeeded.  Further, had he been a Traveller, he might also have succeeded.  However, at present people with ginger hair have no protection under the Equality Act which some people, particularly those who have ginger hair, may say is unfair.

So, what else might be next if the Government were to legislate to protect certain characteristics?

In addition to people championing changes to the law in relation to the menopause and gender identity/expression, we could see campaigns for protection in law:

• for ginger haired people;
• for those of a smaller and larger physical build;
• for political belief which has been protected for years in Northern Ireland (think how Brexit and politics divides us); and
• potentially even for people based on their education, class or societal background.

While some of this may sound fanciful, some employers in the US give protection to their employees on all of the above, so watch this space…

If you have been harassed or discriminated against, please do not hesitate to get in touch with Susanna Spencer.