It is not uncommon for employees to become aware of certain acts after they had occurred, and to argue that they have been subjected to harassment due to those acts, but are they right?
This was the question that the EAT answered in the recent case of Greasley-Adams v Royal Mail Group.
The law states
The Equality Act 2010 states that a person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic that has the purpose or effect of either:
- violating B’s dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
In deciding whether conduct should be regarded as having the prescribed effect, the following must be taken into account:
- the perception of B.
- the other circumstances of the case.
- whether it is reasonable for the conduct to have that effect.
As such, the Claimant must first perceive that they have suffered the effect in question (the subjective question) and the Tribunal must also consider whether it was reasonable for the conduct to be regarded as having that effect (the objective question).
Greasley-Adams v Royal Mail Group
In the Greasley-Adams case, Mr Greasley-Adams, who has Asperger’s Syndrome, experienced a deteriorating relationship with some colleagues. They filed bullying and harassment complaints against him, which were upheld. Mr Greasley-Adams then filed his own grievance against the colleagues, but it was dismissed. During the investigation and grievance process, Mr. Greasley-Adams became aware of previously unknown conduct by the colleagues.
Mr Greasley-Adams brought various claims against Royal Mail, including harassment claims. The Employment Tribunal rejected the harassment claims that related to the conduct that he had become aware of only during the grievance process because he had not been aware of them at the time.
The Employment Tribunal rejected the argument that these incidents could have violated Mr Greasley-Adams’ dignity before the time at which he became aware of them. The Tribunal also held that as he became aware of them during the course of an investigation into his alleged bullying, it was not reasonable for them to be considered as having violated his dignity.
Mr Greasley-Adams appealed to the Employment Appeal Tribunal. The EAT dismissed the appeal. The EAT found that the perception of the person claiming harassment is “a key and indeed mandatory component” in determining whether harassment has occurred. If there is no awareness, there can be no perception.
The EAT also upheld the Tribunal’s decision that an employee should not be constrained in the investigation process and that it would not be reasonable to conclude that the issues had the objective effect of violating Mr Greasley-Adams’ dignity given the context in which he became aware of the alleged unwanted conduct.
This case will not only provide reassurance for employers when issues come to light at a future date, but also because, if a reasonable investigation process is followed, the employer will not be prejudiced by making full and frank disclosures.