The case of Greasley-Adams v Royal Mail Group Limited considered this point. The legal definition of harassment is unwanted conduct that has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment.
A tribunal has to consider the perception of the person who the conduct was directed at and whether a reasonable person would have been affected by the conduct in the same way.
In this case the Claimant was employed as a driver by the Royal Mail. He had also been diagnosed with Asperger’s syndrome. He was in conflict with two of his colleagues who had both submitted bullying and harassment complaints against him which were upheld.
The Claimant then submitted a grievance which included a number of complaints against these same colleagues which was not upheld.
The Claimant brought a case with a number of claims including harassment related to disability. The Claimant provided examples which included other employees gossiping about him and singling him out due to his disability. There was also a rumour that the Claimant had accessed his colleague’s personal medical records.
The harassment claims were unsuccessful. The Tribunal acknowledged that some of the complaints could be seen as unwanted conduct. But they were not capable of violating the Claimant’s dignity because he only found out about them during a grievance investigation into alleged bullying by the Claimant. The Tribunal justified this by saying that it was “inevitable” during the course of the investigation that details would be revealed that the Claimant would not like. Concluding that this amounts to harassment would have the effect of constraining employers investigating bullying and harassment claims for fear that the details emerging from the investigation would be legally actionable.
The Claimant took his case to the Employment Appeal Tribunal arguing that his dignity could be violated even when unaware of the unwanted conduct. This argument was unsuccessful as the perception of the person claiming harassment is key. If there is no awareness there can be no perception. Harassment takes place at the time of the unwanted conduct, not when the person alleging harassment becomes aware of it.
This case is welcome news for employers. Had this case been successful it could have had the effect of disincentivising employers from carrying out very thorough investigations into grievances, claims of bullying, victimisation, harassment or discrimination due to the possibility of the information uncovered being used to form the basis of a Tribunal claim.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.