Harassment is only harassment under the Equality Act if you are aware of it!
Sometimes the law isn’t quite as straightforward as you think it is. You do not think it is difficult to prove that you have been harassed. But under the Equality Act 2010, for an employer to be liable the harassment has to meet the following criteria:
A person harasses another if:
- They engage in unwanted conduct; and
- The conduct has the effect of violating the harassee’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment.
But what happens if you find out after the harassment has occurred that you were harassed? The EAT answered this question in Greasley-Adams v Royal Mail Group Ltd and held that if an employee is not aware that they are being harassed at the time, then they cannot assert that they perceived they were harassed after the fact.
The Claimant, who has Asperger’s Syndrome, entered into a settlement agreement in 2018 with the employer, Royal Mail Group Limited (RMG). Despite this settlement agreement, Mr Greasley-Adams continued to feel disadvantaged by his working pattern and duties, which he felt breached the terms of his agreement. At the same time, two colleagues filed complaints against him asserting that they had been bullied and harassed by him. The Claimant was accused of accessing and reviewing one of the employee’s personnel records. The other had been involved in an episode which left that employee feeling threatened. Their grievances against the Claimant were upheld. The Claimant filed his own grievance alleging that he had been harassed by management disclosing confidential information about him and for the two complaining employees spreading rumours about him which he found out about during the first grievance investigation. The Claimant’s grievance was rejected.
The Claimant filed several Employment Tribunal claims against RMG, including for harassment. The tribunal dismissed these claims on the basis that whilst the disparaging comments could have the effect of violating his dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment, it only had after he had become aware of them during the bullying and harassment investigation. The tribunal went even further and concluded that the unwanted effect did not have this proscribed effect because it was not reasonable to conclude this after the fact.
The Claimant appealed to the Employment Appeal Tribunal (EAT) asserting that the tribunal had erred in its decision by limiting its assessment of whether unwanted conduct had the proscribed effect under section 26 of the Equality Act. He argued that a person’s dignity could be violated when he was not aware of unwanted conduct and that the concept of conduct capable of violating a person’s dignity was therefore distinct and severable from the individual’s perception of that conduct. The Claimant conceded that he was arguing a novel point that had never been litigated before or been considered in other cases.
The EAT rejected his arguments. When deciding if conduct has the proscribed effect, you need to look at the complainant’s perception, the particular circumstances of the conduct and whether it is reasonable for the conduct to have that effect. Here simply, if there was no awareness, then the EAT held there cannot have been any perception.
If you feel harassed in the workplace and want legal advice to stop it or in trying to get redress, then we can help you. It’s always best to get legal advice, because sometimes the law isn’t straightforward as Mr Greasley found out here. Let’s see if he appeals this decision.
This blog was written by Anita Vadgama, Partner at didlaw.