Perception discrimination is a necessary element of harassment

In Greasley-Adams v Royal Mail Group Ltd, the EAT answered a question not yet explicitly covered in case law. To some, it may seem an obvious conclusion, but the specific wording of the legislation was tested here.

The definition of harassment is where:

• A engages in unwanted conduct related to a relevant protected characteristic and
• The conduct has the purpose or effect of
  • Violating B’s dignity, or
  • Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

In deciding whether the conduct had such effect, employment law requires the following to 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

It was conceded that Mr Greasley-Adams was disabled due to his Asperger's syndrome. He raised complaints about a number of acts which he said amounted to harassment, including acts of which he was unaware at the time.

Workplace perceptive discrimination

The Claimant argued that such acts did violate his dignity, because dignity meant how he was held in esteem by his colleagues, so if he was (without his knowledge) being undermined by others, that violated his dignity.

Employment Appeal Tribunal (EAT) decision

The EAT did not uphold his claim. It found that in determining whether harassment has occurred, it was a requirement to take into account the “perception of the Claimant”. If the Claimant had (at the time) no awareness of the conduct, then he could have no perception of it. Acts of which he was not aware did not constitute harassment. Whether they became acts of harassment once he became aware of them depended on the circumstances: in this case, he became aware of them during the course of the investigation into issues, at which time the Tribunal concluded that it was not reasonable for them to be considered to have the effect of violating his dignity as it was inevitable during the course of the investigation that things would emerge which he did not like. That element of the decision is fact-specific and is not to say that any revelations that appear during the course of an investigation can never constitute harassment.

If you have any queries on this article or need discrimination risks for employer's advice, please get in touch with Rena Magdani or Matt McBride.