Harassment – timing, knowledge and circumstances
In Greasley-Adams -v-Royal Mail Group Limited, EAT (employment appeal tribunal) has upheld the findings of a Scottish employment tribunal in an interesting disability discrimination case (in fact, the case concerned a number of issues including whistleblowing but for present purposes, we are looking only at its discrimination aspects).
The claimant had Asperger’s – his employers accepted that his condition met the Equality Act definition of disability. The background to the case was rather complex. Previous proceedings had resulted in a COT3 Settlement, by which the employers had agreed to adjust certain ways of working for the claimant. Subsequently, there were cross complaints by the claimant and some of his colleagues about bullying and other matters.
The employers conducted a bullying and harassment investigation. They found that the claimant was guilty of bullying and harassment. The claimant lodged a grievance – and subsequently these ET proceedings – as a result of those findings.
The particularly interesting aspects of the tribunal’s findings
The claimant argued that his dignity was capable of being infringed even though he didn’t know about the infringement. He said his colleagues had been gossiping about him behind his back. He argued that ‘dignity’ included one’s colleagues esteem – so that it ought legally to constitute harassment if dignity is violated even when the claimant knows nothing about it.
The ET and the EAT disagreed. Looking at the wording of the Equality Act, both Tribunals thought that it was essential that the ‘perception of the claimant’ must be taken into account. Where there was no such perception – because the claimant was not was aware of the offending words and language – the statutory definition of harassment could not be satisfied.
In a related point, the Tribunal considered the fact that the claimant became aware of what his colleagues had said about him in the course of the bullying and harassment investigation. One of the factors that a tribunal has to consider in these cases is whether the claimant’s perception of harassment is reasonable in all the circumstances. Both tribunals thought not.
The ET said ‘it was inevitable that in the course of the investigation, things would emerge which the claimant did not like” It was not reasonable that the unwanted conduct should have the proscribed effect (of violating dignity). EAT said that an employer should “not be constrained in carrying out an investigation….because matters emerging from that investigation are then alleged….to be….. ‘unwanted conduct’.”
These are not only points of academic interest, but are exactly the type of thing that crops up from time to time in practice. We have had experience of cases where claimants want to allege that harassment has taken place even if they were not at the time aware of it. Equally, it is of course not uncommon for ‘unwanted conduct’ to come to light in the context of a bullying and harassment investigation. This case shows that tribunals will not be quick to criticise employers who investigate these matters properly and in accordance with fair procedures.
Author: Paul Scholey, Employment Consultant
