Can a person be harassed under the Equality Act if they are not aware of the unwanted conduct?
Under the Equality Act 2010, a person (A) harasses another (B) if they engage in unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of either:
- violating B’s dignity; or
- creating an intimidating, hostile, degrading, humiliating, or offensive environment for B.
For the purposes of a harassment claim, the relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation – so the unwanted conduct must relate to one of these characteristics of B.
Where A’s conduct does not have the purpose of violating B’s dignity or creating an adverse environment, the effect of any conduct is assessed taking into account the following factors:
- B’s perception;
- the other circumstances of the case; and
- whether it is reasonable for the conduct to have this effect.
In Pemberton v Inwood, the Court of Appeal built on this, and held that consideration must be given to two questions. Firstly, whether the claimant perceived themselves as having suffered the effect in question – this is the subjective question. Secondly, whether it is reasonable for the conduct in question to be regarded as having had this effect – this is the objective question.
In Greasley-Adams v Royal Mail Group Limited, Mr Greasley-Adams was an employee of Royal Mail who suffered with Asperger’s Syndrome. Two of Mr Greasley-Adams’ colleagues submitted bullying and harassment complaints about him, which were upheld by the Royal Mail. Mr Greasley-Adams then submitted a grievance, which included complaints of harassment against these two colleagues – but his grievance was dismissed.
Mr Greasley-Adams brought claims to the employment tribunal, including a claim of harassment relating to his disability. The harassment claim set out several alleged incidents of unwanted conduct, which Mr Greasley-Adams claimed had violated his dignity. These included the spreading of rumours which were used to discredit his grievance, as well as other disparaging remarks and gossip about his disability.
The employment tribunal found that some of these alleged incidents did take place. However, Mr Greasley-Adams only learned of these incidents during the investigation into his alleged bullying of colleagues. The employment tribunal rejected Mr Greasley-Adams’ argument that these incidents could have violated his dignity before he became aware of them. The tribunal also held that, at the time he did become aware of these incidents, it was not reasonable for Mr Greasley-Adams to have considered that they then violated his dignity – it was inevitable that, during the course of this investigation, Mr Greasley-Adams would hear some things about himself that he did not like.
The tribunal commented “we did not believe that an employer should be constrained in carrying out an investigation… because matters emerging from that investigation are then alleged by the subject of the investigation to be ‘unwanted conduct’”.
These comments indicate that the tribunal’s decision was in part a matter of policy or common sense – if incidents that were revealed as part of an investigation into an employee were retroactively harassment of the employee in question, then this might fetter the ability of employers to properly investigate workplace complaints.
Mr Greasley-Adams appealed the tribunal’s decision. He argued that a person’s dignity could be violated, even if they were not aware of the unwanted conduct, on that basis that “dignity” means the esteem in which a person is held by others and can therefore be violated without that person’s direct knowledge.
The Employment Appeal Tribunal (EAT) referred to the factors that must be taken into account in determining whether a claimant’s dignity has been violated and confirmed that the perception of the claimant was “a key and indeed mandatory component”. Without the claimant’s awareness of these incidents, there could be no perception, and therefore no harassment.
Mr Greasley-Adams also argued that the tribunal had essentially concluded that it was not reasonable for the conduct to have had the effect of violating his dignity, simply because it arose in the context of an investigation. However, the EAT held that this is not what the employment tribunal had said. The tribunal had been clear that conduct which came to light during an investigation could be unwanted conduct – however, the context in which the unwanted conduct arose was a relevant consideration in determining whether it was reasonable for the conduct to have violated Mr Greasley-Adams’ dignity, and the tribunal were justified in taking this into account for the purposes of the objective question test.
This case addresses a question which has not previously arisen in harassment claims – namely, whether harassment takes place when the unwanted conduct occurs, or when the claimant becomes aware of it. Because of the requirement of perception, harassment takes places only when the claimant becomes aware of the unwanted conduct in question.
This case also confirms that, in answering the objective question and assessing the reasonableness of a harassment claim, tribunals may take into account the context in which the claimant learns of the unwanted conduct. In the context of an investigation into an employee, it is inevitable that the employee will hear some things about themselves which they would rather not, and which they may view as “unwanted” – but the question of whether it is reasonable for them to view this as a violation of their dignity will depend on all the circumstances, including the need to not fetter the investigator’s ability to carry out their investigation.
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