Can an employee claim harassment in relation to comments that they were unaware of?
A person (A) harasses another (B) if:
- A engages in unwanted conduct related to a protected characteristic (the conduct); and
- that conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B (the proscribed effect).
In deciding whether the conduct has the proscribed effect, the Tribunal must take into account B’s perception; the other circumstances of the case; and whether it is reasonable for the conduct to have that effect.
Mr GA has Asperger’s Syndrome and it was agreed that he has a disability under the provisions of the Equality Act 2010. His colleagues made bullying and harassment complaints against him, which were investigated and upheld. Mr GA then submitted a grievance, alleging that he had also been subjected to bullying and harassment by his colleagues, including that they had made negative comments about his disability. The grievance was rejected by the employer following investigation.
The claim – harassment
Mr GA issued claims against his employer, including for harassment. The Tribunal found that the disparaging comments about Mr GA could have the proscribed effect of violating his dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him, but only to the extent that he was aware of them. Mr GA only became aware of what his colleagues were saying during the investigation. It went on to find that the conduct did not have the proscribed effect because it was not reasonable for the conduct to have that effect in the context of the investigation. The Tribunal dismissed the claims.
The appeal – harassment
Mr GA appealed to the Employment Appeal Tribunal (EAT). He argued that a person’s dignity can be violated whether or not they are ‘aware’ of the unwanted conduct. The employer argued that if he was not aware of the conduct, he could not be said to have had his dignity violated, or an adverse environment created. The EAT agreed with the employer and the Employment Tribunal. It found that the perception of the person claiming harassment is a key and mandatory component in deciding whether harassment has occurred or not. If there is no awareness, there can be no perception. Therefore, the conduct could only have the proscribed effect once he became aware of it during the investigation.
The EAT also considered that the Tribunal had not erred in considering the context in which the unwanted conduct came to light, namely the investigation. Mr GA first became aware of the conduct during the course of the investigation in respect of complaints made about him. It was appropriate that those allegations should be investigated. The Tribunal had considered that it was inevitable that in the course of the investigation things would emerge that Mr GA did not like. In the context of the investigation, it was not reasonable that the unwanted conduct should have the proscribed effect. The Tribunal noted ‘We did not believe that an employer should be constrained in carrying out an investigation into allegations of B&H because matters emerging from that investigation are then alleged by the subject of the investigation to be ‘unwanted conduct’”. The EAT agreed that the context of the unwanted conduct is a relevant consideration when determining whether or not harassment has occurred. The Tribunal had been entitled to find that no harassment had occurred.
The EAT in this case found that the Tribunal was correct to only consider conduct of which Mr GA was aware. It also found that the context, in this case the investigation, was relevant when assessing whether it was reasonable for the conduct to have the proscribed effect.
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23 June 2023
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