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When is harassment not harassment?

Can a claimant that has not proved that he has a disability under the Equality Act 2010 still claim disability related harassment?

The Employment Appeal Tribunal recently considered this point in the context of a man who asserted that he had a disability in the form of dyslexia.  This was not accepted by his employer.

Peninsula Business Services Limited v Baker

Mr Baker worked for Peninsula Business Services Limited (“Peninsula”) as a tribunal representative, providing legal advice and representation in tribunal hearings. Peninsula became concerned that Mr Baker was trying to build up a private case load, although there was no firm evidence of this.

Mr Baker told his Manager in 2014 that he had dyslexia. This was the first time that he had mentioned it to them. After this, he had an appraisal and warned another Manager that he might not be able to cover a case due to his disability. This was the first time he had described his condition as a disability. Sometime later, Mr Baker disclosed to Peninsula extracts from a psychologist report which found that he was dyslexic and referred to him as having a “learning disability”. Mr Baker said that it took him a long time to do things; that his condition had got worse and that he had been struggling for a while. He was referred to Peninsula’s occupational health provider. The doctor recommended reasonable adjustments and considered that Mr Baker was likely to be considered disabled for the purposes of the Equality Act 2010.

After this, Peninsula subjected Mr Baker to covert surveillance because it believed that he was working elsewhere when he was being paid by Peninsula. The surveillance did not show that Mr Baker was moonlighting, but did show that on 4 out of the 5 days he went to his mother’s house for periods ranging from 1 to 3 hours. On that basis Peninsula decided that there was enough material to suggest that he was not devoting all of his time to work. He was therefore invited to a disciplinary hearing, at which point he was told for the first time that he had been the subject of covert surveillance and provided with a copy of the report.

Mr Baker said that finding out that he had been the subject of surveillance gave him sleepless nights and had a profound effect on his general wellbeing, such that he felt that he needed to go on sick leave. Mr Baker complained that being subjected to surveillance was harassment on the grounds of being disabled.

Peninsula argued that Mr Baker had not shown that he was in fact disabled and therefore could not show that he had suffered harassment. It also argued it was simply complying with the ACAS Code of Practice in providing Mr Baker with the report so that he could see the evidence on which Peninsula was relying upon for the purposes of the disciplinary hearing, and that this was a necessary part of a fair disciplinary procedure.

Employment Tribunal (ET)

The ET held that there were no reasonable grounds for a conclusion that the surveillance showed misconduct by Mr Baker; there was no investigation and the surveillance was not justified. It held that neither the decision to put him under surveillance nor the surveillance itself amounted to harassment. This is because he did not know about it. However, telling Mr Baker about the surveillance at the disciplinary stage was harassment as it created an intimidating, hostile, degrading, humiliating or offensive working environment for him.

The ET said that the trigger to carry out the surveillance was Mr Baker’s reliance on his “disability” and also that the occupational health advice firmly supported the view that he was disabled. Therefore it related to the disability issue and as such was a clear case of disability related harassment.

Employment Appeal Tribunal (EAT)

The EAT disagreed with the ET’s findings. It recognised that Mr Baker considered himself to be disabled for the purposes of the Equality Act 2010 but that this was not accepted by Peninsula. It found this to be problematic. It said that if this was the case, then a person who alleges falsely and in bad faith that he has a disability would be able to make harassment claim, which cannot be right.  It therefore followed that the ET had erred in law in deciding that Mr Baker could make a claim for harassment for a disability that he had claimed but could not prove.

The EAT also recognised that had Peninsula taken disciplinary proceedings against Mr Baker but not disclosed the surveillance report then it would have been rightly criticised. It said that it could not be right that a reasonable disclosure (in this case of the existence of the surveillance and the report) made for the purposes of disciplinary hearings in order to comply with the ACAS Code of Practice could have the effect of harassment.

The EAT therefore allowed the appeal and said that the ET should have dismissed the harassment claim because Mr Baker had not shown that he was a disabled person within the meaning of the Equality Act 2010. There were also findings in relation to victimisation which were not upheld.

Comment

The definition of disability for the purposes of the Equality Act 2010 is different to its “everyday” meaning.  For these purposes, a person has a disability if they have a mental or physical impairment which has a substantial long term adverse effect on that person’s ability to do normal day to day activities. It was recognised in this case that whether somebody has a disability for these purposes is a question of fact and degree, and could be open to debate.

This case highlights that only an Employment Tribunal can decide whether or not a person has a disability under the Equality Act 2010 based on the facts. However, where it is likely that somebody will satisfy the definition under the Act (or has a deemed disability) then an employer is under a duty to make reasonable adjustments.

The case highlights that the protection under the Equality Act 2010 is not available to those who only claim to have a disability. It only applies to people who have a disability, to those associated with a disabled person or who are wrongly perceived to be disabled.

If you have any questions relating to discrimination, harassment or if you have any other HR queries please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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