Baldness a disability - Itís a bit thin

The recent decision of an employment tribunal that baldness does not constitute a physical impairment and therefore a disability is surely to be welcomed.

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In the widely reported case of James Campbell a school teacher who complained that he had been harassed by his pupils because of his baldness sought to establish that his baldness constituted a disability and his employer Falkirk Council was liable for the direct discrimination he was subjected to in the form of teasing and bullying by pupils.

Reports of the decision indicate that the Judge got it absolutely right by distinguishing between hair loss caused by some underlying illness which constitutes a disability such as depression or a sinister physical impairment and what the more sophisticated layman calls ìmale pattern baldnessî. On any objective view universal male pattern baldness is not a ìphysical impairment that has a substantial and long- term effect on (a manís) ability to carry out normal day-to-day activitiesî like conversing with colleagues or clients or for that matter teaching which entails the defined statutory ìabilitiesî or ìactivitiesî of ìspeech, hearingî and ìability to concentrateî.

One of the specified abilities or activities in the Disability Discrimination Act is the ìperception of the risk of physical dangerî. Mr Campbellís case appears to have relied on this in the sense that he gave evidence that as a result of the bullying and teasing he feared for his safety. He thought he might be assaulted. Interestingly recent appeal cases (Paterson ñv- Commissioner of Police of the Metropolis 2007 and Chacon Navas ñv- Eurest Colectividas SA 2006) have suggested that there is not a definitive list of abilities or activities and that disability extends to impairments ìwhich hinder the participation of the person concerned in professional lifeî. Thus the impairment may need to be measured against the demands of the job that the Claimant does.

One can easily foresee how an adolescent child suffering from hair loss or a woman with alopecia could objectively be regarded as suffering from a physical impairment that affects her ability to carry on normal day-to-day activities such as the ability to concentrate. Similarly people suffering from ìalopecia totalisî or total body hair loss could quite conceivably be disabled in terms of the Act. In such a case the very far reaching protection that the Act gives against harassment would give the victim a real remedy whether the bullying was by a fellow employee or a third party such as a customer or a pupil. It is important to note that in such a case it is the perception of the victim that is being bullied or teased that it is starting point in determining whether there has been discrimination.

Interestingly the Disability Discrimination Act expressly protects people who suffer from a ësevere disfigurementí such as, I would suggest, by way of example, a prominent ìPort Wine Stainî birth mark as being disabled but ìandrogenicî or ìmale patternî baldness does not fall within that provision.

Mr Campbellís case rested at least in part on his perception that his pupils perceived baldness as signifying something being wrong with him and as being a weakness, but the Disability Discrimination Act does not in the first instance approach the problem of less favourable treatment of allegedly disabled employees in terms of the perception of the bully. Employers should note however that similar provisions in other discrimination legislation governing prevention of harassment, for example, on grounds of sexual orientation extend to situations in which the bully mistakenly believes the victim to be gay when in fact they are not. I do not however expect that the law will develop to protect people who are perceived as being disabled because they are bald when in fact they are not disabled at all!

Quite apart from the fact that any different ruling on the ëbaldness is a disability claimí would have opened the floodgates to all sorts of spurious claims, in fact Mr Campbell is not left without a remedy. He also alleges and can proceed with his constructive unfair dismissal and there is plenty of scope for an employee whose working life is in fact made intolerable due to bullying by colleagues or customers because of ordinary physical features such as baldness, a big nose or big ears to sensibly allege breach of contract and unfair constructive dismissal if the employer fails to take reasonable steps to prevent such treatment. Indeed comments such as ìslap headî by female or indeed gay colleagues could conceivably give rise to vicarious liability for sex discrimination.

David Ludlow is an employment lawyer
At Barlow Robbins LLP in Woking and Guildford
davidludlow@barlowrobbins.com