Can You be Harassed… Without Knowing You’re Being Harassed?

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Can You be Harassed… Without Knowing You’re Being Harassed?

Key Contact: Claire Knowles

Author: Adam McGlynn

The recent case of Greasley-Adams v Royal Mail Group will have you pondering some age-old philosophical quandaries including: if an employee harasses a colleague in a forest, but the colleague isn’t around to hear it, did harassment take place?

GA, who has Asperger’s Syndrome, began employment with Royal Mail in 2008. Over the course of his employment, he was involved in several internal relationship disputes and his relationships with two employees in particular gradually broke down. The two other employees raised bullying allegations against GA, both of which were upheld. In retaliation, GA raised grievances against the two employees and various managers for harassing him by disclosing confidential information about him, spreading rumours, and making negative comments about his disability and hours worked. The grievances were investigated and rejected, provoking GA to pursue the harassment claim before an Employment Tribunal (ET) under s26 of the Equality Act 2010.

The ET were presented with evidence of disparaging comments that certainly could have achieved the test of violating his dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him. And yet, the ET found against GA’s harassment claims. But why?

The offensive comments could only have had the above effect once GA became aware of them, which came to pass as a result of the bullying and harassment investigation. The ET found that unwanted conduct could not have had the above effect on GA’s dignity or environment unless GA had actually perceived that effect. Further, the ET found that, although GA was offended after the fact, when the comments came to light as part of the internal investigation, it would not be reasonable for the comments to have the required effect on GA’s dignity or environment as it was inevitable that things would emerge from the investigation that GA might not like.

On appeal to the Employment Appeal Tribunal (EAT), the EAT reinforced the ET’s findings, confirming that perception and, therefore, awareness of the unwanted conduct is a key and mandatory consideration. This was the case despite GA’s arguments that the comments he was not aware of could have still violated his dignity without his knowledge.

For advice on any of the topics discussed, contact the Employment team at Acuity Law.

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