Calling a man bald, wearing trainers and air kissing: From the surprising to the bizarre, the office behaviours ruled lawful and unlawful at employment tribunals

Have you called a man bald, sent a birthday card to someone who didn’t really want it, or sung a Victoria Wood song in a suggestive way?

Well then you could have broken the law, according to the rulings in a series of employment tribunals. 

Ever air-kissed a colleague?

Then don’t worry, as that ‘cannot be regarded as ‘unwanted conduct of a sexual nature’, a judge found. 

To assist you as you go about your working day, here is a handy guide of the office behaviours previously deemed lawful and unlawful by employment judges. 

Calling a man bald – unlawful 

A judge said that calling a man ‘bald’ could breach equality laws because it is ‘inherently related to sex’.

The decision followed a lengthy legal case brought by electrician Tony Finn, who claimed he had been sexually harassed during a heated row at British Bung Company in 2019.

The employee claimed he was the victim of discrimination after supervisor Jamie King had called him a ‘bald c***’ during an argument on the shop floor.

Mr Finn took the West Yorkshire-based manufacturing group to an Employment Appeals Tribunal after he was dismissed in 2021.

Mr. Finn saw the tribunal rule in his favour in February 2022. Although his former employers immediately appealed this decision.

However, in November 2023, the tribunal dismissed the British Bung Company’s appeal, which centred on the argument that because both men and women can be bald – through choice or illness – that using the word in relation to a man could not be in breach of equality laws.

Overseeing the appeals process, Mrs. Justice Naomi Ellenbogen DBE stated that Mr. King’s baldness remarks were ‘inherently related to sex’.

Sending an unwanted birthday card – unlawful

An HMRC worker who complained after her boss sent her a birthday card when she had said she didn’t want to celebrate the occasion won £25,000 for harassment.

Kani Toure was off sick with work-related stress when she ‘clearly explained’ she wanted correspondence to be kept to a minimum and via email, an employment tribunal heard.

But they sent her a birthday card anyway despite expressly telling her manager she didn’t want to mark the occasion. 

A judge concluded this was ‘unwanted conduct’ and that the ‘repeated contact’ she received while off sick was harassment, adding that HMRC’s duty of care would have been ‘more effectively observed by complying with her expressed wishes’.

After winning ten claims of race and disability harassment and discrimination, Ms Toure was awarded £25,251.62 in compensation including £20,000 for injury to feelings.

Singing a Victoria Wood song in a suggestive way – unlawful

The head chef of a posh Lake District hotel won almost £80,000 after his boss sexually harassed him by singing Victoria Wood’s classic ‘Ballad of Barry and Freda’ at him in a suggestive way.

Sam Nunns won the huge payout after manager Andrew Wilson serenaded him and made a series of ‘disconcerting gestures’ as he lingered on the lyric ‘let’s do it’ from Wood’s parody of the Cole Porter original.

Mr Nunns complained that his boss at the Windermere Manor Hotel in Cumbria ‘attempted eye contact’ while gesticulating and singing the song, which tells of a woman propositioning her shy husband for sex.

Wood’s 1980s song features lyrics such as: ‘Let’s do it/Let’s do it/Do it while the mood is right/I’m feeling appealing/I’ve really got an appetite/I’m on fire/With desire/I could handle half the tenors in a Male Voice Choir/Let’s do it/Let’s do it tonight.’

The chef told an employment tribunal Mr Wilson had repeatedly touched his thigh and bottom and lingered while hugging him as he worked at the £170 per-night hotel, set within ‘beautiful grounds’.

He said that on other occasions general manager Mr Wilson referred to a cucumber and asked him ‘Do you need some time alone dear’ and ‘I’ll put olive oil on the orders list again’.

Around the same time, he ‘faked an orgasm’ when eating the chef’s food, and then hugged and ‘mildly dramatised’ engaging in intimacy with him.

Following a ‘string’ of assaults at the 1850s hotel, Mr Nunns decided to resign and sue.

Although the tribunal ruled that several of these incidents did not constitute harassment, an employment judge said the song had ‘violated his dignity’ and was humiliating.

Calling women ‘birds’ at work – unlawful

Calling women ‘birds’ at work could be sexual harassment, a judge concluded. 

The judgement came in the case of a high end whisky investment company that was ordered to pay over £50,000 in compensation to a female staff member who complained about the language used by her colleagues. 

Using the term – which dates back to the Middle Ages – is ‘derogatory’.

Nina Chung claimed co-workers at Whisky 1901 – located opposite Harrods in Knightsbridge, London – called women ‘birds’ and boasted about their ‘sexual conquests’. 

She was also asked if she was planning on getting pregnant by colleague Robin Sidhu and, in another incident, he locked her out of the company’s office, the tribunal heard.

Air kissing a colleague – lawful

But not all office behaviours are now outlawed – giving a colleague and ‘air kiss’ is lawful, an employment judge ruled.  

The social gesture – where someone pretends to kiss another person without touching them with their lips – cannot be regarded as ‘unwanted conduct of a sexual nature’, Judge Tom Perry concluded.

The ruling came in the case of hospitality worker Jing Jing Chen, who sued her former whisky bar employers after her manager Paul de Newtown hugged her and ‘gave’ her an air kiss.

Despite her assertion that this constituted harassment, a panel ruled that the action cannot be regarded as sexual and Miss Chen had instead ‘misinterpreted’ the gesture from her boss.

The ‘air kiss’ became famous thanks to Joanna Lumley and Jennifer Saunders in TV comedy Absolutely Fabulous. 

Sacking someone for wearing trainers to work – unlawful 

A teenager who was sacked after wearing trainers to work won nearly £30,000.

Elizabeth Benassi successfully sued her former employer for victimisation after business manager Ishrat Ashraf ‘treated her like a child’ over her choice of footwear.

The young employee – who was 18 when she worked there – said she was not aware of the company’s smart dress code and insisted other staff who did the same were not sanctioned.

When she was dismissed from the recruitment company after just three months, Ms Benassi took them to an employment tribunal and her claims were upheld by a judge who said bosses had a ‘desire to find fault’ with her.

Ms Benassi was awarded total compensation of £29,187 at the tribunal in Croydon.

She joined Maximus UK Services, which works for the Department of Work and Pensions and helps to get people back into work and off benefits, in August 2022.

It was heard her colleagues were ‘a young group of employees’ who were mainly in their early twenties, but she was ‘the youngest of all’.

She told the tribunal that being the most juvenile ‘made life difficult for her’ in that she was ‘excluded from the group’ and ‘micromanaged’. 

Asking a woman why she wants to work – unlawful

Asking a woman why she wants to work is sex harassment, a tribunal ruled.

An employment judge concluded that asking a female employee such a question is based on an ‘outdated idea’ that men are the ‘main breadwinners’.

The ruling came in the case of antiques dealer John Wellington who was sued after making the remark to female sales assistant Audrey Pereira.

An employer would ‘not even have thought’ to ask a male employee the same question, the tribunal concluded.

The jewellery specialist – who runs a shop in the historic town of Windsor – was told to pay his former employee more than £55,000 in compensation after she successfully took him to an employment tribunal.

Employment Judge Kate Annand said the questions were ‘inherently sexist’ and made Ms Pereira feel she needed to ‘justify’ why she wanted to work.

She said: ‘The tribunal concluded that this did amount to “unwanted conduct” in that [Ms Pereira] found the questions to be intrusive and inappropriate.

‘The tribunal found it was unlikely that [Mr Wellington] would have asked a male who was seeking a role why they needed to work, why they needed to earn money, or asked them questions about their wife.

Asking ‘what are you smoking?’ – unlawful

Asking a black person ‘what are you smoking?’ is racist, a judge decided. 

Employment judge Rachel Wedderspoon said any ‘reasonable person’ would be offended by the remark due to the ‘stereotypical view’ of ‘a black person with dreadlocks smoking drugs’.

Her ruling came in the case of Gemma Spencer, a black administrator who sued her employers for race discrimination and harassment after she was sacked.

Ms Spencer said she had her hair in braids when director Mark Kelly asked her line manager if she had been ‘smoking something’ after they perceived she had made an error at work.

After she accused him of racism, Mr Kelly said there was no racial element to it and he in ‘no way meant to make some remark about her being a Rastafarian’. 

Bosses said Ms Spencer was ‘hyper-sensitive’ and had ‘warped’ the impact the phrase had on her.

But this assertion was rejected by Judge Wedderspoon, who said the comment was ‘unwanted conduct’ which ‘violated the dignity’ of Ms Spencer, who was awarded £35,109 compensation. 

Sighing – unlawful

Sighing in frustration at a co-worker can now be classed as harassment, a judge ruled.

Robert Watson broke down in tears after his manager repeatedly sighed and made ‘exaggerated exhales’, which the tribunal ruled amounted to disability discrimination.

The tribunal, held in Southampton, heard that Mr Watson worked for Roke Manor Research, the company behind Hawk-Eye, the cutting-edge ball tracking system used at Wimbledon, in international cricket and top-level football.

He joined the firm in August 2020 as a software engineer, but struggled with poor timekeeping, difficulty focusing and distraction – symptoms later linked to his ADHD, which wasn’t diagnosed until November 2022.

After returning from four days off sick following his diagnosis, Mr Watson was confronted by a project leader, referred to only as DT due to national security concerns around the firm’s defence projects.

‘Something’s got to change,’ DT told him – prompting Mr Watson to burst into tears.

The tribunal was told DT then continued to question Mr Watson’s hours, his time at his desk and his work output – all while visibly showing frustration.

‘[Mr Watson] alleges that DT questioned [his] hours of work and his patterns of work and the time he spent at his project desk and that he expressed nonverbal frustration such as sighing and exaggerating exhales,’ the tribunal heard.

‘He said that over the next few weeks, DT made comments which made him feel anxious, questioned his working hours and patterns and [expressed] nonverbal frustration which he did not see him expressing towards anyone else in the team.’

The judge accepted the effect this behaviour had on Mr Watson’s mental health.