The law on harassment for the purposes of the Equality Act 2010 is a minefield with so many hurdles for an employee claimant to get over to bring a successful claim. There needs to be unwanted conduct that has the purpose or effect of creating an intimidating, degrading or hostile environment for the employee at work.
The Employment Appeal Tribunal (EAT) has recently considered whether the effects of unwanted conduct towards an employee can amount to harassment under the Equality Act 2010 if the victim was not aware of the unwanted conduct at the time it occurred. This was considered in the case of Greasley Adams v Royal Mail Group Limited [2023] EAT 86 in the (EAT) in June 2023, in which it was confirmed that harassment under the Equality Act 2010 takes place when the complainant becomes aware of the unwanted conduct, and not at the time the conduct occurs. The Claimant in this case was therefore unsuccessful in his appeal.
Background to the case
The Claimant in this case, Mr Greasley-Adams, was employed by Royal Mail as a driver. He had Asperger's Syndrome, a neurodevelopmental condition, which both parties agreed throughout proceedings amounted to a disability under the definition set out in the Equality Act 2010. Mr Greasley-Adams had a difficult relationship with two of his colleagues, and there had been various bullying complaints against him over a number of years, which were upheld following an internal investigation. Throughout this investigation, it actually became apparent that Mr Greasley-Adams' colleagues had disclosed confidential information about him to other colleagues, and had made derogatory and negative comments about his disability.
Having become aware of his colleagues' behaviour following the internal investigation, Mr Greasley-Adams submitted a grievance to Royal Mail alleging that he had been harassed by them. The grievance was rejected. Mr Greasley-Adams then brought a number of claims against Royal Mail in the Employment Tribunal, including harassment. He argued that he had suffered harassment in relation to his disability by reason of conduct, which he was not aware of at the time it occurred. The claims were all dismissed. Whilst the Employment Tribunal recognised that the comments made about Mr Greasley-Adams by his colleagues could be capable of creating an intimidating and hostile environment for him at work, it was not reasonable that this could have been the effect that the conduct had on him, since he was not aware of it at the time the comments were made.
The Claimant appealed to the Employment Appeal Tribunal (EAT), and claimed that a person's dignity could be violated even if they were not aware of the unwanted conduct at the time that it occurred. Ultimately, the EAT decided that these incidents could not have had the 'effect' of violating the Claimant's dignity before he actually became aware of them. It held that the perception of the person claiming harassment was a key factor in the 'test' for proving harassment, and that if there was no awareness, there could be no perception. The EAT agreed with the Employment Tribunal that when the Claimant did become aware of the acts of harassment, it was not reasonable, given the context in which he had become aware of them and the timing, to be considered as having violated his dignity at this point.
Key takeaways
This case is a reminder that 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'. It is important to remember that the claimant's perception of the incidents must be considered, alongside the other circumstances of the case and whether it was reasonable for the conduct to have the effect that the claimant complains of.
Whilst this case has confirmed that there cannot have been harassment where the claimant is not aware of the conduct at the time it occurred, the EAT were clear that this should not discourage claimants from bringing these claims in future if they believe that they have experienced harassment from colleagues at work.
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