14 September 2023
Does an employee need to be aware of the unwanted conduct for a successful harassment claim?
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Background: To succeed in a harassment claim an employee must have suffered unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The employee’s perception of the conduct needs to be taken into account, alongside the other circumstances of the case and whether it was reasonable for the conduct to have the effect complained of.
Facts: The employee, Mr Greasley-Adams, worked for Royal Mail as a driver. He suffered from Asperger’s Syndrome and it was accepted that he was disabled for the purposes of the Equality Act 2010.
Relations between Mr Greasley-Adams and two of his colleagues deteriorated over time and resulted in them bringing bullying and harassment complaints against him. These were investigated and later upheld. During the investigation into the complaints against him, the employee became aware of certain comments that had previously been made about him by colleagues. In response, Mr Greasley-Adams submitted a grievance. He alleged that his colleagues had harassed him because of his disability by subjecting him to unwanted conduct that violated his dignity. Examples of such conduct were gossiping and spreading rumours about him and making fun of his disability. His grievance was rejected following an investigation.
Mr Greasley-Adams brought a Tribunal claim for harassment.
The Tribunal rejected Mr Greasley-Adams’ claim. It said that although some of the conduct did take place, these incidents did not violate his dignity before the time at which he became aware of them. Furthermore, when he later became aware of the comments it was in the context of the employer’s investigation into his alleged bullying and it was not reasonable for the comments have the effect of violating his dignity.
Employers should not be constrained in carrying out an investigation because matters emerging from that investigation could be alleged to be ‘unwanted conduct’. Equally, interviewees should not be constrained from answering questions put to them in the course of the investigation – they need to be able to answer truthfully in accordance with their own view of the matters under investigation.
Mr Greasley-Adams appealed.
The EAT dismissed the appeal. It said that ‘the perception of the person claiming harassment is a key and indeed mandatory component in determining whether or not harassment has occurred’ and ‘If there is no awareness, there can be no perception’.
Applying that reasoning, when Mr Greasley-Adams was unaware of the conduct, he could have had no perception of it. He could not succeed in his claim in relation to any period during which he was unaware of the comments. The EAT agreed with the Tribunal that once Mr Greasley-Adams was made aware of the conduct during the investigation, it was not reasonable for it to have the effect of violating his dignity. Also, employers and employees should not be constrained during an investigation. It was to be expected that during the course of a bullying investigation issues or comments would emerge which the subject of the investigation does not like.
Implications: This is a helpful decision for employers as it clarifies that a person cannot be harassed under the Equality Act 2010 at a point at which they are unaware of the unwanted conduct.
Harassment only occurs once the victim becomes aware of it. Further, the circumstances in which they become aware of unwanted conduct are key to whether it was reasonable for it to have a harassing effect.
It is reassuring for employers that carrying out investigations which uncover negative comments or conduct will not usually enable the subject to succeed in a harassment claim as a result. However, do take care, as tribunals will continue to take into account all the circumstances of the case. It may still uphold a harassment claim arising out of an investigation in some contexts. For example, if the investigation is carried out inappropriately or reasonable steps are not taken to keep it confidential.