Hello, welcome back and thank you for joining us for another case of the week update. For anyone that missed out on last week’s case about being dismissed by someone you have never met, please find that here. This week we look at whether you can be harassed without even knowing it!

The Claimant, Adam Greasley-Adams, is disabled under section 6 of the Equality Act due to his Asperger’s Syndrome. His employment with the Respondent, Royal Mail, began in 2008 as a part-time MGV driver working 30 hours per week. Mr Greasley-Adams made disclosures surrounding driving infringements which were sufficient to form a whistleblower claim, along with raising concerns surrounding overtime opportunities as he was not being considered on similar footing to his colleagues.

However, the relationship between the Claimant and his colleagues broke down to the point where they submitted bullying and harassment complaints about him. These stemmed in part from an allegation that the Claimant had accessed his colleague’s personal file, but also from another colleague witnessing an autistic episode. An investigation was launched by the company which recommended various changes, while also disclosing to the Claimant that he had been the subject of disparaging comments made between the other members of staff. In his response to the investigation outcome letter, he stated that the company had failed to consider that he was also the victim of harassment, as his personal information had been disclosed, rumours spread about him, and disparaging comments made relating to his disability.

Mediation between the employees involved was recommended but the Claimant refused to participate. A claim was brought soon afterwards.

The Employment Tribunal considered the definition of harassment under section 26 of the Equality Act. The issue turned on whether a remark made without the person’s awareness could create an intimidating, hostile, degrading, humiliating, or offensive environment. The argument was made that a person’s dignity could be violated whether or not they were aware of the unwanted conduct. The Tribunal considered whether the conduct could have a retrospective effect on an individual to the extent that they would meet the legal threshold.

The Employment Tribunal rejected this argument, stating that if one was not aware of the conduct, then they could not be said to have had their dignity violated, or an adverse environment created. Emphasising the perception of the person claiming harassment was key in finding whether a harassment claim would succeed. In this case, the Employment Tribunal and the Employment Appeal Tribunal dismissed this argument.

Takeaway Points

The first point to mention is that harassing conduct is never acceptable in the workplace, especially on the grounds of a person’s disability. Even though the facts of this case meant that the conduct was not harassment, making disparaging comments such as these about a fellow colleague at work falls far from the mark you would expect from a professional workplace.

That being said, it is important to note that the doctrine of ‘what you don’t know can’t hurt you’ applies to harassment as well. It follows our normal understanding that comments made ‘behind your back’ can’t have the effect of creating a hostile work environment for the subject of said comments. On balance, better to simply not run the risk and keep the discriminatory comments to yourself.

This judgment also highlights the context in which a person becomes aware of the conduct. As this information formed part of an investigation, it was found that simply relaying the comments could not have the effect of violating the person’s dignity, even though the comments themselves may have done, had they been said to the victim directly.

If you or someone else you know have experienced issues like those described above, please contact a member of our team who will be able to assist you.