Claimant Must Be Aware of Unwanted Conduct in Order to Succeed in Harassment Claim
The Employment Appeal Tribunal (EAT) has confirmed that only unwanted conduct of which the Claimant is aware can be taken into account in a harassment claim.
Background
In the case of Greasley-Adams v Royal Mail Group Ltd, Mr Greasley-Adams (Mr G-A) was the subject of two bullying and harassment complaints, which where upheld following an investigation. During the course of the investigation, Mr G-A was made aware of apparently disparaging comments that had been made about him by his two colleagues. Mr G-A then brought his own grievance, which was investigated but not upheld.
Mr G-A brought a number of Tribunal claims, including a claim for harassment relating to disability. It was accepted that Mr G-A, who suffers from Asperger's Syndrome, is disabled in law.
Harassment Under the Equality Act
In order to succeed in a harassment claim, it is necessary for there to have been unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating the claimant's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The claimant's perception must 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.
Tribunal Decision
The Tribunal rejected Mr G-A's claims. It found that whilst some of the conduct Mr G-A complained of was proven, these incidents did not violate Mr G-A's dignity before the time at which he became aware of them. When he did become aware of the unwanted conduct, it was in the context of a grievance investigation into his own alleged bullying. The Tribunal held that in these circumstances it was not reasonable for the conduct to have violated his dignity at that stage.
Mr G-A appealed to the EAT.
EAT Decision
The EAT dismissed the appeal. The perception of the person complaining of harassment is a key and mandatory component in determining whether harassment has occurred. When Mr G-A was unaware of the conduct, he could have had no perception of it. It was not therefore possible for him to succeed in his claim in relation to the period between the comments being made and Mr G-A being made aware of the comments.
In respect of the period after Mr G-A was made aware of the comments, the EAT saw no flaw in the Tribunal's reasoning that it was not reasonable for the unwanted conduct to be harassment given the context in which they were disclosed to him.
Learning Points
This case confirms that harassment under the Equality Act can only take place when the claimant becomes aware of the unwanted conduct. It is not possible for there to have been harassment when the conduct takes place if the claimant is not aware of the conduct.