Knowledge of unwanted conduct

In Greasley-Adams v Royal Mail Group Ltd the Employment Appeal Tribunal has upheld an Employment Tribunal’s decision to dismiss an employee’s harassment claim where the victim was unaware of the unwanted conduct (i.e. the harassment).

In the case the employee who had Asperger’s Syndrome, alleged various disadvantages and less favourable treatment relating to his condition and asserted that he had been harassed by management.

Tribunal Decision

In determining the question of harassment, the Tribunal found it could only have regard to unwanted conduct of which the employee was aware.  It was clear that it was the perception of the person claiming harassment that was key and if there was no awareness then there could be no perception of harassment.

It also went on to find that no harassment had occurred because in the context of the investigation (during which the evidence of other alleged perpetrators / harassers came to be discussed) it was not reasonable for the comments to have the prescribed effect.  It found that the unwanted conduct (when the Claimant became aware of it) did not have the prescribed effect because having regard to all matters, it was not reasonable for the conduct complained of to have that effect.   In the Tribunal’s view it was inevitable that in the course of a bullying / harassment investigation things would emerge which the Claimant employee did not like.  In the context of that investigation therefore it was not reasonable for the unwanted conduct to have the prescribed effect of violating dignity etc.    The EAT fully supported the Tribunal in its reasoning and dismissed the appeal.


Harassment is a difficult claim to defend for employers.  Discrimination operates so that, once a Tribunal has found as a fact that harassment has occurred, then the Respondent cannot really affect the potential liability (albeit it can of course do much to mitigate the situation with thorough investigation and grievance procedure etc).

The EAT reminded us that in deciding whether unwanted conduct has the effect of violating an employee’s dignity, it must take into account a number of factors:-

  1.  the perception of the victim;
  2. the other circumstances of the case, and
  3. whether it is reasonable for the conduct to have that effect.

This gives an Employment Tribunal a discretion in what they consider to be very weak or unmerited cases to find that no harassment has occurred, even if some unwanted conduct was found, as a fact, by the Tribunal to have taken place.