Can someone be harassed and not know about it?
26 June 2023
In this decision, the Employment Appeal Tribunal (EAT) considered whether an individual could claim that they had been harassed within the meaning of the Equality Act 2010 if they were not aware of the unwanted conduct at the time, but became aware of it in the context of an investigation into their own behaviour.
Greasley-Adams v Royal Mail Group Limited [2023] EAT 86
Facts of the case
The claimant, Mr Greasely-Adams (G-A), was employed as a driver by Royal Mail. He has Aspergers’ Syndrome, which the parties agreed amounted to a disability under the Equality Act 2010. Relations between G-A and two of his colleagues had deteriorated over time. They submitted bullying and harassment complaints against him, which were investigated and later upheld. G-A then submitted a grievance, alleging that he had been harassed by management and by colleagues. The allegations related to the disclosure of confidential information about him, the spreading of rumours and negative comments, including about his disability. These had arisen as part of the investigation into the bullying and harassment complaints made against G-A. His grievance was rejected following an investigation.
G-A brought a number of claims against Royal Mail, including for harassment, all of which were dismissed by the employment tribunal. In relation to his claim for harassment, the disparaging comments were found to be capable of violating G-A’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment, as required under the relevant provisions of the Equality Act 2010. However, this was only the case once he had become aware of them. Even though G-A was offended by the comments, the tribunal held that in the context of the investigation it was not reasonable for the conduct to have had that effect on him.
G-A appealed to the EAT.
EAT decision
G-A claimed that a person’s dignity could be violated even when he or she was not aware of the unwanted conduct at the time it had occurred. The evidence of the unwanted conduct that had arisen during the investigation, which included being spoken about in unfavourable terms by his colleagues, was capable of violating his dignity even before he was made aware of it.
This argument was rejected by the EAT, which held that the correct test for harassment is cumulative. First there must be unwanted conduct by A, and then that conduct must have the effect of violating B’s dignity. In deciding whether the conduct has that effect, there are a number of statutory factors to take into account: the perception of B; the other circumstances of the case; and whether it is reasonable for the conduct to have that effect. The perception of the claimant is a key component in determining whether harassment has occurred, and without any awareness of the conduct there can be no perception.
The EAT also agreed with the tribunal’s conclusion that once G-A had become aware of the conduct during the investigation, it was not reasonable for it to have the effect of violating G-A’s dignity.
The Birketts view
This decision provides a good illustration of how the test for deciding whether or not harassment has occurred depends on both the subjective question of whether the claimant perceives themselves to have suffered from harassment, and the objective test of whether it was reasonable for the conduct to be regarded as having that effect. The claimant could not have perceived himself as suffering from harassment, as he was unaware of it at the time. When he did become aware of it, it was not reasonable for him to regard the conduct as harassment in the context of the investigation.
The tribunal in this case had noted that it was inevitable in an investigation of this nature, into allegations of bullying and harassment, that “things would emerge which the claimant did not like”. It would be extremely problematic for employers to be constrained in carrying out an investigation because of the risk that matters emerging from it could be regarded as ‘unwanted conduct’.
It should also be noted, however, that in considering the question of whether a claimant is reasonable in viewing conduct as harassment, a tribunal will take into account the context and all the circumstances of the case. The manner in which an investigation is conducted, particularly if confidentiality is not maintained, could still give rise to a claim of harassment.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2023.