Case update (3): Disability discrimination – harassment

Summary:  Can an employee successfully claim harassment by simply asserting he or she has a disability without establishing that they are disabled under the Equality Act 2010?

No, says the EAT in Peninsula Business Service Ltd v Baker available here.

Facts:  The employee, Mr Baker, had been employed by Peninsula Business Services Ltd (PBS), the employer, for five years as a Tribunal advocate. He had asserted at least twice to PBS that he might be dyslexic and provided excerpts from a psychologist’s report confirming a dyslexic diagnosis.

PBS referred Mr Baker for an occupational health report, which concluded that he was likely to be considered disabled and recommended reasonable adjustments. PBS also engaged a third-party covert surveillance firm to follow him for a week. PBS’s stated reason for wanting covert surveillance was that it believed Mr Baker was working elsewhere.  On four out of the five days of surveillance Mr Baker did visit his mother for one to three hours during the working day. Disciplinary proceedings were initiated, during which the surveillance report was disclosed to Mr Baker in order to comply with the ACAS Code of Practice.

Mr Baker brought Tribunal claims of harassment and victimisation on grounds of disability (on the basis of his assertions of dyslexia). The Tribunal upheld his claims in part and concluded that PBS’s decisions to authorise the covert surveillance and to carry it out amounted to victimisation and that, separately, its use of the covert surveillance report in disciplinary proceedings was harassment.

PBS appealed to the EAT which allowed the appeal. It made a number of interesting points:

• Disability must be proved, not asserted (except in cases of association or perception).  Without a finding of disability, Mr Baker could not prove harassment related to disability;
• Harassment can be contrasted with victimisation: under victimisation a claim can be brought by a person falsely claiming to be disabled, so long as that information is not given in bad faith;
• An employer’s ACAS-compliant disclosures in disciplinary proceedings cannot amount to harassment.  To hold otherwise would compel the employer to conceal the report, in breach of the ACAS Code, for fear of a harassment claim being made out;
• In considering victimisation, the Tribunal should have decided whether PBS subjected Mr Baker to a detriment because of Mr Baker’s protected acts, but it did not; and
• An employer cannot be vicariously liable where the alleged victimisation was carried out by an agent who lacked knowledge of the protected acts.

Implications:  Good news for employers in that it makes it more difficult for employees to bring harassment claims on the basis of perceived disability.  However, it remains best practice that:

• where an employee asserts that he or she has a disability, the employer should obtain a medical report and make reasonable adjustments as necessary.  If the employer has any doubt as to the report’s conclusions, it should obtain a second report; and

• employers arranging covert surveillance of an employee must have regard to the employee’s right to respect for private and family life under art.8 of the European Convention on Human Rights, and to their duties under the Data Protection Act 1998 to process information about the employee lawfully and fairly.