Employment tribunal and court judgments | June 2023

Greasley-Adams v Royal Mail Group Limited [2023] EAT 86

Harassment can only take place when the unwanted conduct occurs – not when the Claimant becomes aware of it.

Background

The Claimant was a van driver who was disabled by reason of having Asperger's Syndrome. Two colleagues complained formally about the Claimant, and their complaints were upheld. The Claimant subsequently submitted his own complaint, which included allegations that the other two colleagues had harassed him. This complaint was not upheld.

The Claimant brought a Tribunal claim alleging that his two colleagues had harassed him by:

• Singling him out for gossip and disparaging remarks about his Asperger's.
• Spreading rumours that he had accessed a colleague's sick records which they then relied on to complain about him.
• Discussing an incident at work linked to his Asperger's which was later used to discredit him in the grievance process.

Employment Tribunal (ET) decision

The ET dismissed the harassment claims on the basis that, whilst some of the alleged unwanted conduct had happened, they could not have violated the Claimant's dignity before he was aware of them.

By the time he was aware of them, through the grievance process, it was not reasonable for him to consider that they violated his dignity. It was inevitable that things would emerge in the grievance investigation that the Claimant would not like, so it was not reasonable for the conduct to have had the proscribed effect when these arose in the context of investigation.

It was also not appropriate for the employer's investigation to be constrained (to avoid upsetting the Claimant) nor for those interviewed in the investigation process to be constrained from answering truthfully. 

Employment Appeal Tribunal (EAT) decision

The EAT dismissed the Claimant's appeal. They rejected his argument that a person's dignity could be violated even when they were unaware of the unwanted conduct.

The test for harassment under section 26 Equality Act 2010 provides that A harasses B if A engages in unwanted conduct which had the purpose or reasonable effect of violating B's dignity or crating an intimidating, hostile, degrading, humiliating or offensive environment for B.

To decide whether the conduct has that effect, section 26(4) Equality Act 2010 requires that following is taken into account: the perception of B, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

Perception of B is therefore a key and mandatory component in determining whether harassment has taken place. B cannot perceive violation of his dignity if he is unaware of the conduct.

Kohli v Department for International Trade [2023] EAT 82

Where a tribunal identifies non-discriminatory reasons for conduct relied on in direct discrimination claim, it does not always need to expressly consider unconscious discrimination.

Background

The Claimant, who was of Indian origin, claimed she had been directly discriminated against by the Department for International Trade (DTI) on the grounds of race. This was in relation to internal roles she had not been given (against a background of changing roles and requirements by the DTI) and her appraisal grade.

Employment Tribunal decision

The Tribunal dismissed the claims after determining that there were non-discriminatory reasons for each of her complaints.

The Claimant appealed arguing that the ET had failed to consider whether the Respondent might have been subconsciously discriminatory.

Employment Appeal Tribunal decision

The EAT dismissed the Claimant's appeal. It would only be an error for the ET to fail to expressly examine whether there was subconscious motivation where there was evidence on which an inference of subconscious discrimination could be based; unreasonable conduct alone will not be sufficient.

In all direct discrimination cases, the ET needs to consider the true reasons for the treatment complained of, including what operated on their mind both consciously and subconsciously.

Once the ET has decided the true reasons for the actions concerned, there will be little room for finding subconscious discretion unless the reasons themselves are discriminatory (e.g. they have made assumptions which are stereotypical).

The ET's findings of fact as to the reasons for the treatment complained of excluded subconscious discrimination. There were not facts from which it could be inferred that the Claimant's race played a part in the decisions made.