In order to satisfy the definition of harassment in the Equality Act 2010, tribunals have to take into account the worker’s perception of the unwanted conduct when determining if it had the effect of violating their dignity. In Greasley-Adams v Royal Mail Group Ltd, the Employment Appeal Tribunal (EAT) held that workers have to be aware of and know about the conduct in question in order to claim to have a perception of it.
Basic facts
Mr Greasley-Adams, who has Asperger’s Syndrome, worked part time as a driver for Royal Mail. After bringing an earlier tribunal claim, the terms of his employment were settled as part of an agreement reached between the parties. However, he continued to feel disadvantaged by his working pattern and duties, particularly about the opportunities open to him to do overtime, which he considered did not comply with the terms of the agreement.
Subsequently, one of his colleagues voiced a suspicion that Mr Greasley-Adams had accessed and read his personal records. In another incident, he suffered an “autistic episode” which led to a reaction from another colleague. These two colleagues submitted bullying and harassment complaints against him which were upheld following an investigation.
Mr Greasley-Adams then lodged a grievance alleging he had been harassed as a result of confidential information being disclosed, that the two colleagues had spread rumours about him, and negative comments had been made about his disability which he regarded as bullying and harassment. However, this was unsuccessful, as was his appeal against that decision.
He brought a claim of harassment under section 26 of the Equality Act, among other things.
Relevant law
Section 26 states that a person is guilty of harassment if they engage in unwanted conduct related to disability (in this case) and which “has the purpose or effect of violating [another person’s] dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment”.
When deciding whether it has had that effect, tribunals must take into account the worker’s perception of the conduct, the other circumstances of the case and whether it was “reasonable for the conduct to have that effect”.
Tribunal decision
The tribunal found that although the disparaging comments made about Mr Greasley-Adams could have the effect of violating his dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment, that could only be the case if he knew about them at the time they were made. As he did not know about them until the investigation was underway, it was not “reasonable” for him to claim that they constituted harassment.
Mr Greasley-Adams appealed on the basis that “dignity” means how an individual is held in esteem by those around them and can therefore be violated even when they are not aware of it. As such, the concept of conduct was distinct and severable from the individual’s perception of it. As to whether it was reasonable for him to treat the conduct as harassment, he argued that the tribunal had failed to consider other relevant factors, such as a number of derogatory comments that had been made about him before the investigation started and the motivation for the complaints by his colleagues.
EAT decision
Dismissing the appeal, the EAT held that the test in section 26 is cumulative. In other words, there has to be unwanted conduct which then has the effect of violating the worker’s dignity. In order to decide whether that is the case, tribunals have to take into account the worker’s perception, consider the impact of any other relevant circumstances, and finally whether it was reasonable for the conduct to have that effect.
In other words, the perception of the person claiming harassment is a mandatory component in determining whether or not harassment has occurred. “If there is no awareness, there can be no perception”.
As to whether the tribunal was correct to conclude that it was not reasonable for the conduct in this case to have the necessary effect, the EAT held that it had taken into account all relevant circumstances including the unwanted conduct and the context in which it occurred.
Comment
This is the first case to consider the point in time when harassment occurs and makes clear this is when a worker becomes aware of the unwanted conduct and not when the unwanted conduct occurs.