In this recent case (June 2023) the EAT considered whether the effect of conduct can amount to harassment when the Claimant was unaware of colleagues’ comments until later. Greasley-Adams v Royal Mail Group Ltd: The Employment Appeal Tribunal (EAT) upheld the employment tribunal’s ruling, which dismissed an employee’s harassment claim. During an investigation into allegations of bullying and harassment brought against the employee by two colleagues, the employee became aware of disparaging remarks made about him by other colleagues. The employee contended that these remarks had violated his dignity.

Background

The Claimant Mr Greasley-Adams was employed by Royal Mail as a driver. Mr Greasley-Adams was and is disabled within the meaning of Section 6 of the Equality Act 2010. Specifically, he has Asperger’s Syndrome. There were problems between Mr Greasley-Adams and two of his colleagues. His colleagues raised a grievance against him for bullying and harassment. The employer investigated and upheld the complaint of harassment brought by the two colleagues. During the investigation, Mr Greasley-Adams became aware of remarks made about him by his colleagues, which he had been unaware of at the time. Shortly afterwards Mr Greasley-Adams lodged complaints. The complaints states these disparaging remarks of which he had no prior knowledge, constituted harassment. His complaints were made under three broad headings. Firstly, harassment, secondly the spreading of rumours and thirdly, negative comments made by his two colleagues.

Definition of Harassment

The definition of harassment is where:

A person (A) harasses another (B) if:

• A engages in unwanted conduct related to a relevant protected characteristic and
• The conduct has the purpose or effect of
  • Violating B’s dignity, or
  • Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

In deciding whether the conduct had such effect, employment law requires the following considerations:

• The perception of B
• The other circumstances of the case
• Whether it is reasonable for the conduct to have that effect

The Claimant, Mr Greasley-Adams, contended that these remarks did indeed infringe upon his dignity, as he defined dignity in terms of how he was regarded by his colleagues. Therefore, if he was being undermined by others without his awareness, it constituted a violation of his dignity. The Claimant brought their claims before the Employment Tribunal (ET), but all grounds, including one conclusion, were dismissed. The conclusion stated:

“Negative remarks made about the Claimant could potentially violate his dignity and create an environment that is intimidating, hostile, degrading, humiliating, or offensive to the Claimant (referred to as the ‘proscribed effect’), but only if the Claimant was aware of such remarks. We determined that the Claimant became aware of his colleagues’ comments only during the bullying and harassment investigation.

However, based on the reasons outlined in paragraphs 182-190 below, we concluded that the unwelcome conduct did not have the proscribed effect.”

The Claimant appealed this finding, as well as three others.

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Employment Appeal Tribunal (EAT) Decision

The Employment Appeal Tribunal (EAT) dismissed the argument that harassment could have taken place prior to the claimant’s knowledge of the statements. Therefore, affirming the tribunal’s decision to consider only the unwanted conduct of which the employee was aware. The ‘perception’ of the claimant is a key element in determining whether harassment occurred. If the claimant did not perceive any unwelcome conduct, they cannot claim that their dignity was violated. Without awareness, there can be no perception.

Additionally, the EAT ruled that the tribunal was accurate in concluding that, considering the context of the underlying investigation, it was not reasonable for the unwelcome conduct to have violated the claimant’s dignity. The tribunal did not adopt the stance that it is always unreasonable for a claimant to perceive their dignity as violated by conduct that surfaces during an investigation. But, given the specific circumstances and context of this case, the tribunal had the authority to consider these factors when assessing reasonableness.

Learning

This is a good reminder of the test for establishing if harassment has occurred to an employee. It depends on the subjective assessment of whether a person (claimant) ‘perceives’ themselves to have experienced harassment alongside an objective evaluation of whether it was reasonable to view the conduct as having that effect. In this case, Mr Greasley-Adams could not have perceived himself as a victim of harassment as he was unaware of it taking place at the time.

Read the full summary