Background
The Claimant, "GA" worked for the Respondent as a driver from 2008. In 2018 he raised a separate claim which was ultimately settled. The written settlement (referred to as a "COT3") contained GA's terms and conditions of employment. The facts and circumstances of that previous claim were not subject to the EAT's decision.
GA has Asperger's Syndrome, an Autism Spectrum Disorder. Despite the previous claim being settled and his terms and conditions of employment being agreed between the parties in the COT3, he continued to have concerns regarding his working patterns and conditions. GA felt that he was being disadvantaged and that his conditions in practice did not align with what was agreed with his employer. One of GA's colleagues suspected him of accessing his personal records without permission and raised that as an issue with the employer. Separately, GA suffered an autistic episode, which negatively affected a separate colleague. Ultimately, those two colleagues submitted formal grievances against GA.
In turn, GA then submitted grievances against those two colleagues, citing various incidents. The rally of grievances between these individuals led to their relationships rapidly deteriorating. The basis of one of the complaints against GA included allegations of bullying and harassment done by him, against both of the other colleagues. This allegation was investigated by the Respondent, and it upheld the complaints against GA. He then submitted further counter-grievances which were investigated by the Respondent but ultimately rejected.
During the course of the bullying and harassment investigation GA came to learn that the two colleagues had, prior to that investigation beginning, made some disparaging comments about him. GA in turn relied on those comments as being "unwanted conduct" amounting to harassment under section 26 of the Equality Act 2010. That section contains the following wording:
"A person (A) harasses another (B) if —
a) A engages in unwanted conduct related to [disability], and
b) the conduct has the purpose or effect of—
i. violating B's dignity, or
ii. creating an intimidating, hostile, degrading, humiliating or offensive environment for B."
section 26 goes on to say that in deciding whether or not the alleged conduct has the effects described in paragraph b) above (referred to as "the proscribed effect") the Tribunal must take into account:
"i) the perception of B, ii) the other circumstances of the case, and iii) whether it is reasonable for the conduct to have that effect".)
The Employment Tribunal ("ET") had to consider whether or not comments made about GA, which he only became aware of some time after them being made and during the course of a bullying and harassment investigation, met the test laid out by section 26 of the Equality Act 2010.
The ET concluded that the comments could have the proscribed effect, described above. However, that could only trigger once he became aware of the comments and depended on the circumstances in which that happened. The ET concluded that whilst GA may have been offended by the comments made, in an investigation into bullying and harassment claims it was almost inevitable that GA would become aware of comments that he took issue with. Taking that into account, and considering GA's "perception" of the comments (in that he was not even aware of them until some time later) the Tribunal did not consider it reasonable for the comments to have the proscribed effect.
The ET therefore rejected the harassment claim, and GA appealed to the Employment Appeal Tribunal ("EAT"). In doing so, GA argued that a person's dignity could be violated without them having knowledge of the conduct that caused it, and was therefore separate and distinct from their perception of it. GA however, was unable to offer any reliable authority to support his submission. The EAT rejected that submission, dismissed his appeal and upheld the ET's interpretation.
Comment
This is an informative decision, which underlines the individual subjectivity of a harassment claim under section 26 of the Equality Act 2010. It's crucial to remember that such claims depend significantly on the claimant involved and the effect of the specific conduct upon them. As a significant part of that, the individual's perception of the conduct is a factor which must be considered. However, that can be a double edged sword. In this instance, those issues meant that the claimant was unable to establish their harassment claim at all; this vital consideration revealed that his perception of the unwanted conduct was not sufficient, and his claim failed.
