Can an employee be blissfully unaware yet suffer discrimination by way of harassment?
No, ruled the Employment Appeal Tribunal (EAT) in the recent decision of Greasley-Adams v Royal Mail Group Limited [2023] EAT 86.
Facts
Mr Greasley-Adams (GA) was employed by Royal Mail Group Limited (RM) as a driver. He has Aspergers’ Syndrome. Parties agreed his Aspergers amounted to a disability for the purposes of the Equality Act 2010 (EqA). GA’s relationship with two colleagues worsened and they later complained about him to RM alleging bullying and harassing behaviour. Those complaints were upheld.
GA thereafter submitted a grievance alleging harassment by managers and colleagues, relating to matters he had become aware of during the investigation of the grievances raised by his colleagues.
His complaints were based on allegations of spreading of rumours, negative comments about his disability, and disclosure of confidential information. The grievance was not upheld following investigation by the investigating RM manager.
GA subsequently brought Employment Tribunal (ET) claims against RM, including harassment, which the ET dismissed.
The ET found there was the following evidence:
- GA had been spoken about in unfavourable terms
- GA had been the subject of allegations by his colleague, that he had looked at confidential personal files, and that the disparaging comments were capable of violating GA’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment (see “Law” below)
However, the fact that GA was offended by them was only the case when he became aware of them during the grievance investigation into his conduct against colleagues. As such the ET decision was that it was not reasonable for the conduct to have had that effect on him, so fell short of the statutory test for harassment. GA appealed the decision to the EAT.
Law
The relevant law is derived from the following legislation:
Section 26, Equality Act 2010 (EqA)
Harassment
(1) A person (A) harasses another (B) if—
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of—
(i) violating B's dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—
(a) the perception of B;
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
Decision
The EAT dismissed GA’s appeal.
It concluded that the Section 26 test is a cumulative one. First, party A requires to have engaged in the unwanted conduct against B, and second the conduct has to have had (in this case) the effect of violating B’s dignity (again in the context of this case).
To decide whether the conduct has had that effect, each of the following has to be taken into account by the tribunal:
(a) perception of B
(b) all other circumstances of the case
(c) whether it is reasonable for the conduct to have had that effect.
The EAT found that perception of B is a key and mandatory component of the test, so if there is no awareness of the conduct, there can be no perception.
There is a subjective question, being B’s perception, but also an objective question - was it reasonable for the conduct to be regarded as violating dignity or creating an adverse environment.
As GA had been unaware of the conduct at the time, it was not reasonable for the conduct to have had the effect and the ET had not made an error in law in determining the question of harassment.
The EAT, made clear the need to have regard to the context in which the unwanted conduct came to light, here during the investigation of GA’s own conduct.
In examining reasonableness that required consideration of GA’s perception of the conduct, which was only engaged when he became aware of the conduct during that investigation. It had been entirely appropriate that the allegations should be investigated, and an employer should not be constrained in carrying out investigations nor interviewees constrained from truthfully answering questions put to them because matters emerging from these may then be alleged as unwanted conduct.
Comment
Katherine Irvine, Associate in our Employment team comments:
“The EATs ruling makes clear the unwanted conduct and the context of that conduct are relevant considerations when assessing a claim of harassment under section 26 of EqA. It conducts a useful assessment of the subjective (claimant’s perception) and objective (reasonableness of that perception) tests involved in section 26 claims.
“Here, when GA eventually became aware (during the investigation of his own conduct) of the ‘unwanted conduct’, it was not reasonable for him to regard that as harassment. It should help set employers minds at ease when conducting investigations into allegations of bullying and harassment and avoid fear of successful claims against them if matters emerge during investigatory steps which the employee being investigated may not like and regard as unwanted conduct.
“The case however also makes clear, that when assessing the reasonableness of an employee viewing such conduct as harassment, the tribunal will also take into account the context and all circumstances of the case. It will therefore be important to remember the manner the investigation is carried out will be important – so if for example confidentiality were not to be maintained, or the investigators own conduct during the information gathering amounted to unwanted conduct, those could amount to successful claims of harassment in and of themselves.
"So, whilst ignorance may be bliss and probably not harassment, context is everything.”
