If a tree falls in the forest, and there’s no one around to hear it, does it make a sound? If a person is unaware of their privilege, does it still exist? Can a Claimant be harassed if they are unaware of the act of harassment? All three are age old questions, but thankfully the latter now has a clear answer (in the legal sense, you can draw your own conclusions on the philosophy).
In the EAT decision of Greasley-Adams v Royal Mail Group Limited – the Claimant – a driver for the Respondent, argued that disparaging comments relating to his disability violated his dignity and was consequently unlawful harassment under the Equality Act 2010.
The general test for harassment under the EqA 2010 is that person A harasses person B if they engage in unwanted conduct relating to a protected characteristic which has the purpose or effect of violating person B’s dignity.
The background to this was that the Claimant had suffered a breakdown in the relationship between himself and two of his colleagues. Initially, this led to said colleagues taking out a grievance against the Claimant in respect of bullying and harassment – both of which were upheld. In response, the Claimant raised his own grievance wherein he complained of a disclosure of his confidential information and the spreading of rumours and negative comments about his disability.
The catch, however, was that the Claimant only became aware of this behaviour once it had been brought to light during the initial investigation against him and not when the behaviour first took place.
Following the rejection of his grievance, the Claimant raised several claims in the ET, one of which was that the disparaging comments made about him related to his disability and had the effect of violating his dignity and were thus were capable of meeting the EqA 2010 definition of unlawful harassment. It was argued that even though he had not been aware of the unwanted conduct at the time it had occurred, it still had the effect of violating his dignity.
The tribunal rejected this argument, holding that the incidents relied upon by the Claimant could not have had the effect of violating his dignity where he had yet to become aware of them. It was noted that a key consideration in establishing harassment is the perception of the person claiming the harassment, accordingly, if they were unaware of the behaviour, they could not perceive it to be harassment.
When the Claimant appealed the ET decision, the EAT also considered that the nature of the Claimant becoming aware of the alleged acts of harassment after they had taken place rendered them incapable of violating his dignity, having only come about due to an investigation into allegations of bullying against him. In this regard, it would not have been reasonable for the tribunal to consider the information which came about during the investigation as harassment as this would effectively limit employers in carrying out future investigations if truthful answers given by interviewees could instead be viewed as unwanted conduct.
There are two key takeaways from this case; first, it serves as confirmation that, for the purposes of the Equality Act 2010, harassment does not occur when the conduct occurs but rather when the complainer becomes aware of it. Second, the circumstances in which the victim becomes aware of any unwanted conduct will play a role in whether or not the behaviour is capable of qualifying as harassment.
So, can a Claimant be harassed if they are unaware of the act of harassment? No, no they can’t.
If you have any questions regarding potential variation to contracts of employment or any other area of Employment law, please get in touch with Blackadders Employment Team, working across Scotland.