Image by PavlovLex from Pixabay
1. Introduction
This blog explores how the law on discriminatory harassment applies in cases of bullying about aspects of physical appearance, such as baldness. Physical appearance is, of course, not a protected characteristic under the Equality Act 2010. The only provision which might encompass this relates to an impairment ‘which consists of a severe disfigurement’ (s.3 sch 1). But case law has cast doubt on whether this provision could extend to conditions such as hair loss.
The recent case of Finn v British Bung Manufacturing Company Ltd highlighted a different option for Claimants harassed because of some aspects of appearance (in that case, baldness). This option is bringing claims relying on the law on discriminatory harassment related to other protected characteristics, such as sex and age. This blog evaluates the use of these provisions where the conduct complained of relates to physical appearance.
2. A worthy cause?
The rights and wrongs of protecting aspects of appearance under equality laws have long been debated. On the one hand, although some aspects of appearance are mutable and within our control, many are not, despite the growth in medico-cosmetic beauty treatments which are threatening to blur this line. Research shows that being perceived as unattractive can be stigmatising and socially disadvantageous – with those of us who are less-than-beautiful likely to earn less and be judged negatively by others throughout different life stages. And for some, issues of appearance are intricately connected with psychological wellbeing, with many people who experience hair loss and other traits suffering significant distress as a result.
One response to this evidence is that, like intelligence and social skills, variations of appearance within a normal range should fall within a sphere of expected resilience. As no-one can claim to be aesthetically perfect, the concept of appearance discrimination is often met with concerns about the floodgates opening to an unmanageable number of claims – but this does not appear to have materialised in countries such as France and some states in America, where such claims are more easily permitted under dedicated laws. Indeed, some have argued that beauty is as much of a legitimate consideration for employers as intelligence, given that both may increase profitability (the distinction, perhaps, is that, unlike intelligence, the link between beauty and profits stems from the bias of others).
Despite the fact that calls for an appearance equality law have gained little traction in the UK, awareness is now growing about how physical appearance affects life experiences. In 2021, the House of Commons Women and Equalities Committee’s inquiry into body image concluded that “people face appearance-based discrimination on a daily basis, at work, in schools and in public spaces […] concerns about the way we look start younger, last longer, and affect more people than ever before”. Media stories reflect a growing interest in appearance inequality too; from footballers facing height-based abuse on the terraces, to the harmful impact of health policy in terms of worsening the felt stigma of obesity, differential treatment based on appearance is fast gaining recognition as a societal problem. Our increasingly digital society may exacerbate this trend, with our images becoming more widely available – both professionally and socially – and more open to commentary and abuse from others.
This changing context may justify a different approach to appearance equality in law. But, in the absence of a specific legislative change to implement this, Claimants may have to turn to other protected characteristics, in particular the law on discriminatory harassment ‘related to’ sex and age, to challenge appearance abuse.
3. Harassment ‘related to’ a protected characteristic
The definition of harassment under s.26(1) of the Act can be paraphrased as:
(a) engaging in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of—
(i) violating the other person’s dignity, or
(ii ) creating an intimidating, hostile, degrading, humiliating or offensive environment for the other person.
For the sake of completeness, there are two other forms of harassment listed under s.26 – including sexual harassment (i.e. ‘unwanted conduct of a sexual nature’) under s.26(2), and harassment related either to the rejection of, or submission to, unwanted conduct of a sexual nature under s.26(3). The focus of this blog is on the form outlined above and contained in s.26(1).
Conduct ‘related to’ a protected characteristic provides a deliberately wide threshold which does not require a test of causation (EOC v Secretary of State for Trade and Industry [2007] ICR 1234). It includes not only treatment because of a protected characteristic, but also treatment which is related to the protected characteristic by the form it takes (such as discriminatory jokes or ‘banter’), even if not so motivated (see Hartley v Foreign and Commonwealth Office Services [2016] 5 WLUK 652). The conduct need only have a “connection or association” (para 6, EOC v Secretary of State for Trade and Industry [2007] above) with the protected characteristic.
Given this low threshold, it should perhaps be no surprise that the recent Finn decision recognised that certain aspects of physical appearance may also be ‘related to’ sex or other protected characteristics.
4. The Finn case
In May 2022, judgment in the case of Finn v The British Bung Manufacturing Company Ltd and others (1803764/2021) was handed down by a first instance Employment Tribunal.
The Claimant was an electrician with over 23 years’ employment, and an unblemished disciplinary record, with the First Respondent. In 2019, there was a verbal altercation at work between the Claimant and one of his colleagues. During this incident, in which the Claimant alleges he was threatened with physical violence, the colleague called the Claimant “a bald cunt”. No disciplinary action was taken and matters returned to normal for nearly two years.
In 2021, there was a further altercation between the Claimant, his colleague and a supervisor. The facts of what happened next are beyond the scope of this piece but culminated in the Claimant being accused of misleading the Respondent into believing that a criminal investigation was underway into the altercation and aftermath (which the Tribunal found did not happen) and culminated in his dismissal and an unsuccessful appeal.
The Claimant brought claims for wrongful and automatically unfair dismissal, detriment pursuant to protected disclosures, detriment for a health and safety reason, harassment (relating to both sex and age) and victimisation. He succeeded in relation to unfair and wrongful dismissal, some of the detriment claims, and sex-related harassment.
For the purpose of this article, it is the finding of harassment related to sex which is the focus. This stemmed from the argument in which the Claimant was called a “bald cunt” (it had also been alleged that the word ‘old’ was used but the Tribunal did not accept this). The Tribunal found that baldness was not inherently related to age, but it was related to sex.
5. Determining whether an appearance trait is ‘related to’ sex
Although it is hard not to have sympathy for the Claimant, this case raises some difficult questions. The first is whether it sets the boundaries of protection in the right place.
In reaching its conclusion that harassment about baldness is sex-related, the Tribunal in Finn drew an analogy with the earlier case of Insitu Cleaning v Heads. In that case, the comment “hiya big tits” (made by a male manager to a female member of staff) was found to be sex discrimination. The link drawn by the Tribunal in Finn was that:
“It is much more likely that a person on the receiving end of a comment such as that which was made in the Insitu case would be female. So too, it is much more likely that a person on the receiving end of a remark such as that made by [the Claimant’s colleague] would be male. [The Claimant’s colleague] made the remark with a view to hurting the claimant by commenting on his appearance which is often found amongst men.”
So, sufficient prevalence of any trait within a protected group (in this case, men) seems to be enough to show that it is ‘related’ to that characteristic. The implications of this extend far beyond baldness because there are numerous physical traits which would be much more prevalent within one protected group than another. Think of facial hair or prominent Adam’s apples – both of which are much more common in men than women. Or lipoedema (which causes swollen legs and is often mistaken for obesity) which is usually only found in women. But traits which may be equally at risk of harassment – such as having big ears or a double chin – would seem not to relate to any particular group in terms of prevalence and therefore remain unprotected. This sort of trait-specific distinction may be hard to justify when it excludes some immutable, stigmatised physical traits but includes others purely on the basis of the likely distribution between groups.
Baldness itself offers a good example of this potential unfairness. In Finn it is not clear from the judgment what type of baldness the Tribunal was referring to in its comments about prevalence, but implicitly this is likely to be male pattern baldness. While the vast majority of people experiencing male pattern baldness are indeed men, the same cannot be said of other hair loss conditions such as alopecia areata. Would the Tribunal’s logic mean that harassment about male pattern baldness engages rights under the Act, but harassment about alopecia areata would not? It would be very difficult to justify that distinction; not enough is known about the relative experiences of people with the two types of hair loss. The limited research available on this point has reached varying conclusions and, most recently, unpublished research conducted at the Centre for Appearance Research at the University of the West of England suggests that the experiences of the two groups are similar in many ways. There appears to be insufficient empirical justification for granting rights to people with pattern baldness but not other types of hair loss.
The illogicality of relying on group prevalence to allocate rights is amplified when we consider that some personal styling choices can presumably also be ‘related to’ sex following this logic. To give an extreme example, wearing tights – or having long hair – is much more common among women than men; given the low threshold for ‘related to’ claims, illustrated in Finn, should these traits attract the protection of the discriminatory harassment provisions even though so many other immutable traits do not?
6. Non-prevalent groups and social barriers
A second question raised by the Tribunal’s application of the law in Finn is that it’s not clear what impact – if any – the Claimant’s own sex has on the decision. Given the importance which the Tribunal places on prevalence, where does this leave someone in a ‘non-prevalent’ group? In other words, would a woman harassed in the same way as Mr Finn still be able to argue that the harassment was ‘related to sex’?
It is well-established that harassment under the Act does not need to relate to the Claimant’s own sex, so female Claimants with the same condition should also be able to argue that their treatment was related to sex even though relatively few women suffer from male pattern baldness. But the logic of the woman’s claim would seemingly be the opposite of that adopted in Finn; in other words, it is related to sex because baldness is atypical for women, so not conforming to typical gendered stereotypes of appearance. This is important, because one might expect the social barriers facing someone with an ‘unusual’ trait for their sex to be greater, deserving of more protection from the law, not less. But that ‘social barriers’ approach seems to be the exact opposite of the focus on prevalence adopted in Finn. Clarity on this point is needed.
7. Measuring prevalence
Third, it is also uncertain, following Finn, how prevalence for these purposes should be measured and evidenced. No statistics are provided in the judgment to back up the finding of prevalence of baldness among the male population. Instead a ‘social facts’ approach appears to have been adopted, with the (all-male) Tribunal commenting that “as all three members of the Tribunal will vouchsafe, baldness is much more prevalent in men than women.” Tribunals do sometimes take notice of facts which are “so well established to the knowledge of the court that they may be accepted without further enquiry” (Phipson on Evidence, 19th edition – exemplified in London Underground v Edwards (No2) 1999 ICR 494). So the Tribunal’s approach on the issue of prevalence and sex is probably uncontentious as a standalone point. But they then found – again without disclosing any empirical basis – that baldness is not related to age, because hair loss can affect men of any age. While this is certainly true to some degree, baldness does become significantly more common with advancing years. (Studies have found that around 16% of men aged 18-29 and 53% of men aged 40-49 will notice the first signs of balding, with percentages continuing to increase with age). These statistics certainly show a strong correlation between age and hair loss – but the Tribunal’s assessment of the link was that it was not strong enough to demonstrate that baldness was ‘related to’ age. Given the apparently narrow margins at issue here, it is not clear which traits will be found to be ‘related’ to a particular group, nor what empirical evidence (if any) is required to prove this, creating uncertainty.
8. Alternative approaches
In summary, the current law, as illustrated in Finn, does not provide the basis for a fair or consistent solution to the wider problem of appearance harassment. If major law reform were a possibility, Parliament could consider creating a new protected characteristic of appearance – or perhaps reformulating equality law in its entirety to remove the need to shoehorn claims into often-problematic and outdated defined categories.
But, in the absence of legislative reform, I suggest that it is the disability provisions of the Act which should be the focus of incremental expansion and clarification by the Tribunals. The Act’s main definition of disability in section 6 is functional; in other words, it assesses the effect of an impairment on the person’s ability to carry out particular activities. It is therefore very unlikely to be satisfied by a case of physical appearance (such as hair loss) alone without additional impairment (e.g. a mental health condition such as depression). But, as mentioned earlier, para 3 of Sched 1 of the Act provides that:
…an impairment which consists of a severe disfigurement is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities.
The severe disfigurement provision is the only part of the Act which expressly relates to appearance, and it does so by deeming someone with a qualifying severe disfigurement to be disabled.
Linguistically, some people may not think of hair loss as a ‘disfigurement’. But a purposive approach to the severe disfigurement section reveals a social model-inspired provision designed to bring impairments which produce (severe) appearance-related disadvantage within the scope of the Act. Severe hair loss surely satisfies this underlying logic, if not the problematic language used to enact it. But there is continuing uncertainty about the scope of this provision in practice, including whether or not it applies to any type of hair loss.
In the Scottish decision of Campbell v Falkirk Council S/136261/07, a male schoolteacher in his sixties was found not to have an impairment because baldness was held to be an “aspect of physical appearance” only. The claim was made under the standard definition of disability rather than the severe disfigurement provision, but this made no difference because the finding of no impairment would have prevented both.
Campbell is certainly an unhelpful decision for Claimants harassed about their hair loss. But, as a first instance decision of a Scottish Employment Tribunal, it could be departed from. And – as I have written elsewhere – there may also be good (though, to my knowledge, untested) grounds to distinguish it in some cases. If a similar claim about baldness is brought, a Tribunal might therefore have the chance to extend the reach of the severe disfigurement provision, reducing the need for Claimants to try to bring their claims under other protected characteristics, such as sex and age.
Expanding the use of the severe disfigurement provision, rather than bringing claims about baldness under the sex-related harassment provisions, would have two major advantages. The first is the application of the duty to make reasonable adjustments. The opportunity to wear a wig or a hat is, for many people, an important adjustment in daily life to cope with baldness. But complaints sometimes arise from people who are prevented from wearing a wig or hat in schools or at work, as well as particular challenges in public places, such as pat down searches at airports. The law would be more robust if the application of this duty was strengthened rather than sidestepped by diverting claims into other protected characteristics.
The second advantage of using the severe disfigurement provision, rather than sex-related harassment, in claims about baldness is that, although insulting someone about their hair loss may commonly be recognised as socially unacceptable, a link between baldness and sex is not one which is readily comprehensible for many people. While discussing Finn on LBC radio, the barrister Daniel Barnett of Outer Temple chambers, commented that:
“I do think these sorts of cases give discrimination law a bad name, because it’s just counter- intuitive. It’s not the sort of thing you instinctively think should be sex discrimination.”
His interviewer replied
“I’m afraid, I’ve got to be honest with you sport, it sounds utter nuts.”
Laws which are commonly perceived to be illogical are less likely to be adhered to. On that basis, this lack of understanding is problematic, and perhaps (as Daniel Barnett alluded to) risks a backlash against the law relating to sex harassment more widely. Including hair loss within the scope of the ‘severe disfigurement’ provision may be more readily understood given the focus on appearance inherent in that provision.
In conclusion, recognition of the social barriers and psychological distress connected with physical appearance is long overdue. But doing so using the vehicle of harassment ‘related to’ another protected characteristic purely on the basis of prevalence in a particular group may create more problems than it solves.About the author
Dr Hannah Saunders is a Research Fellow in the Law faculty at Queen Mary. She is currently working on a project funded by the VTCT Foundation, aiming to improve access to equality rights for people with a visible difference. She has a PhD from Durham University and is an experienced lecturer in Contract Law and Employment Law.
(Suggested citation: H Saunders, ‘Appearance, harassment and the Equality Act 2010’, UK Labour Law Blog, 15 September 2022, available at https://uklabourlawblog.com/)
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