Discrimination: perception of harassment

04 August 2023

Harassment occurs where,

  • someone is subjected to unwanted conduct
  • related to a protected characteristic
  • that has the
    • purpose or effect of violating their dignity, or
    • creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

However, there are other important factors, including the perception of the person complaining of harassment, and whether it is reasonable for the conduct to have the effect complained of.

Can a Claimant be harassed if they were not aware of the act of harassment?

Greasley-Adams v Royal Mail Group Ltd

Mr Greasley-Adams worked for Royal Mail. It was accepted that he was disabled for the purposes of the Equality Act 2010. Following a dispute with some colleagues regarding his working patterns and duties, relations with two of his colleagues deteriorated and his colleague’s raised grievances against him grievances against on the grounds of bullying and harassment. These grievances were upheld. However, during the investigation of the grievances, facts emerged that his colleagues had violated his dignity by gossiping and making fun of his disability and had spread rumours about him. In response, Mr Greasley-Adams submitted a grievance against his colleagues alleging that they had harassed him.

Mr Greasley-Adams subsequently issued tribunal proceedings for, amongst other things, disability discrimination.

The tribunal found that whilst some of the conduct he complained of was proven, these incidents did not violate his dignity before the time at which he became aware of them. When he did become aware of the unwanted conduct, it was in the context of a grievance investigation into his own alleged bullying. In these circumstances it was not reasonable for the conduct to have violated his dignity at that stage. The tribunal rejected his claims. Mr Greasley-Adams appealed.

The appeal was dismissed.

The EAT held that the perception of the person complaining of harassment is a key and mandatory component in determining whether harassment has occurred. When Mr Greasley-Adams was unaware of the conduct, he could have had no perception of it. It was not therefore possible for him to succeed in his claim in relation to the period between the comments being made and him being made aware of the comments.

The EAT also agreed with the tribunal’s conclusion that once Mr Greasley-Adams had become aware of the conduct during the investigation, it was not reasonable for it to have the effect of violating his dignity. It was inevitable that during a bullying investigation into his conduct things would emerge that he did not like.

In conclusion

We must be a little cautious in this case. In this case it was argued at the EAT that ‘dignity’ could be violated even if the claimant did not know about it, because it reduced the esteem with which they were held amongst their colleagues. This argument failed.

Going forward it is now clear that the Tribunal will have a duty to ensure that when dealing with grievances, complainants or witnesses should not be discouraged from being truthful for fear of a future harassment claim.  It will be harder to bring claims based on what is revealed in investigations because the tribunal must take into consideration whether any unwanted conduct had the proscribed effect and the circumstances of that conduct.

As this advice is general in nature and will need to be tailored to any one situation. As a MILS member you have access to the legal advice line, as well as several industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.