The Employment Appeal Tribunal (EAT) has upheld an employment tribunal's decision to dismiss an employee's harassment claim in Greasley-Adams v Royal Mail Group Ltd. The EAT found that the tribunal was correct only to have regard to unwanted conduct of which the employee was aware in determining the question of harassment.
The claimant, who has Asperger's Syndrome, began employment with RMG Ltd in 2008 as a driver. Relations between him and two of his colleagues deteriorated and the two colleagues submitted bullying and harassment complaints against the claimant which were upheld. The claimant then submitted a grievance in which he included complaints of harassment against his two colleagues. The grievance was dismissed and the claimant brought tribunal proceedings, one of which was a claim of harassment related to disability.
The allegations of unwanted conduct which the claimant alleged had violated his dignity included being singled out by other employees for gossip and disparaging remarks about his disability, the spreading of rumours (which included a rumour that he had accessed one of his colleague's confidential sickness records which was used in the grievance investigation) and a discussion by employees about an incident at work linked to his autism, which was then used to discredit him.
The tribunal found that the disparaging comments about the claimant could have the effect of violating his dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him, but only once he became aware of them during the bullying and harassment investigation. However, the tribunal held that it was inevitable that, in the course of a bullying and harassment investigation, things would emerge which the claimant would not like, and in the context of that investigation it was not reasonable for the unwanted conduct to have the proscribed effect.
The EAT agreed, dismissing the argument that a person's dignity could be violated even when they weren't aware of the unwanted conduct. If there is no awareness there can be no perception and the perception of the person claiming harassment is a key component in determining whether or not harassment has occurred.
Take note: It's clear from the decision in Greasley-Adams that the perception of the person claiming harassment is a key component in determining whether or not harassment has occurred. It will not be possible for conduct of which the person is not aware at the relevant time to have the effect of violating their dignity.
