Recent Case Law - Perception is an essential element of harassment
In this month’s case law example we’re looking at how perception is an essential element of the tribunal’s decision in Greasley-Adams v Royal Mail Group Limited case.
Mr Greasley-Adams, an employee with Asperger’s Syndrome, filed a claim against Royal Mail for harassment related to disability (among other claims).
His colleagues had submitted complaints against him, which were upheld and following this, Mr Greasley-Adams raised a grievance which was dismissed.
Mr Greasley-Adams (the claimant) alleged that he experienced unwanted conduct that violated his dignity, including gossip and disparaging remarks about his disability, the spreading of rumours, and discussions about incidents linked to his autism.
Mr Greasley-Adams only became aware of a number of incidents as a result of the grievance investigation.
What the Equality Act 2010 says
Under the Equality Act 2010, harassment occurs when a person engages in unwanted conduct related to a protected characteristic, which violates the dignity of the victim or creates an intimidating or offensive environment for them.
To determine if conduct has the proscribed effect, the following must be considered:
- the perception of the victim
- the circumstances of the case, and
- the reasonableness of the effect.
The Court of Appeal has further clarified that the assessment of proscribed effects involves both:
- Perception – whether the claimant perceives themselves to have suffered the effect (a subjective test)
- Reasonableness – whether it was reasonable for the conduct to have had that effect (an objective test)
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The Tribunal findings
The Tribunal found that the incidents could not have violated his dignity before he became aware of them, and when he did become aware of them, it was not objectively reasonable for them to be considered as having violated his dignity.
The employment tribunal dismissed the harassment claims.
The Employment Appeal Tribunal (EAT) upheld the dismissal of the appeal. The EAT confirmed that a person’s dignity could not be violated at a point at which they are unaware of the conduct.
Therefore, perception is a crucial element, and if there is no awareness of the incident in question, there can be no perception.
What this case means for employers
This case establishes that harassment under the Equality Act occurs when the victim becomes aware of the unwanted conduct, rather than at the time of the conduct itself.
It also emphasises the importance of considering the reasonableness of the conduct in the context of an investigation into alleged bullying and harassment.
The tribunal’s assessment took into account the need for an unbiased investigation and truthful responses from witnesses.
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