Employment Law Cases
Discrimination: perception of harassment
Only unwanted conduct of which a claimant is aware can be taken into account in a claim for harassment.
Harassment occurs where someone is subjected to unwanted conduct related to a protected characteristic that has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The following factors are relevant: the perception of the person complaining of harassment, the other circumstances of the case and whether it’s reasonable for the conduct to have the effect complained of.
Mr Greasley-Adams worked for Royal Mail as a driver and it was accepted that he was disabled for the purposes of the Equality Act 2010 as he suffered from Asperger’s Syndrome. Following a dispute concerning his working patterns and duties, relations with two of Mr Greasley-Adams’ colleagues deteriorated to the point where they submitted grievances against him on the grounds of bullying and harassment. These grievances were upheld. In response, Mr Greasley-Adams submitted a grievance against his colleagues alleging that they had harassed him.
Mr Greasley-Adams subsequently issued tribunal proceedings claiming (amongst other things) that his colleagues had harassed him because of his disability by subjecting him to unwanted conduct that violated his dignity. Examples of such conduct were that colleagues had gossiped and made fun of his disability and had spread rumours about him.
The tribunal rejected his claims. It found that whilst some of the conduct he complained of was proven, these incidents did not violate his dignity before the time at which he became aware of them. When he did become aware of the unwanted conduct, it was in the context of a grievance investigation into his own alleged bullying. In these circumstances it was not reasonable for the conduct to have violated his dignity at that stage. Mr Greasley-Adams appealed.
The appeal was dismissed.
The perception of the person complaining of harassment is a key and mandatory component in determining whether harassment has occurred. When Mr Greasley-Adams was unaware of the conduct, he could have had no perception of it. It was not therefore possible for him to succeed in his claim in relation to the period between the comments being made and him being made aware of the comments.
The EAT also agreed with the tribunal’s conclusion that once Mr Greasley-Adams had become aware of the conduct during the investigation, it was not reasonable for it to have the effect of violating his dignity. It was inevitable that in the course of a bullying investigation into his conduct things would emerge that he did not like.
It is important to remember that appeals to the EAT are limited in nature and can only be successful if the tribunal misapplied the law or their decision was perverse. If the tribunal applied the law correctly then unless their decision is perverse - namely that no reasonable tribunal could have reached it - then the appeal will fail. Here, to try and get over the fact that the claimant did not agree with the decision, his representative argued that the law had been misapplied because ‘dignity’ could be violated even if the claimant did not know about it, because it reduced the esteem with which they were held amongst their colleagues – this argument failed.
However, the most important aspect of the case is that the EAT said that in these kinds of investigations, complainants or witnesses should not be discouraged from being truthful for fear of a future harassment claim and so it is this aspect which means that it will be harder to bring claims based on what is revealed in investigations because the tribunal has to take into consideration whether any unwanted conduct had the proscribed effect and also the circumstances of that conduct. The EAT concluded that the tribunal had properly directed itself.