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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:

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:

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