Can a worker bring a claim if they did not realise they were being harassed?
It is essential that employers are aware of conduct that may amount to harassment and that employees understand the possible negative implications of conduct which amounts to harassment on their colleagues.
The criteria for bringing a harassment claim is set out in section 26 of the Equality Act 2010 (EQA 2010). An individual who wishes to bring a harassment claim (Person B in the formula below) against a colleague or manager (Person A) must satisfy the following two-stage test:
1. Person A engages in unwanted conduct related to a relevant protected characteristic; and
2. the conduct has the purpose or effect of:
(i) violating Person B’s individual’s dignity; or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for Person B.
Contrary to common belief, a victim of harassment does not need to prove a consistent pattern of behaviour; a single, isolated incident may amount to harassment. Furthermore, the victim does not have an obligation to notify their colleagues of behaviour that they find offensive and respondents to such claims are not able to rely on the fact that a claimant did not outwardly object to the conduct in question.
Harassment claims fundamentally need to be based on the protected characteristics that are enshrined in EQA 2010, such as race, sex, sexual orientation and disability (though crucially not marriage/civil partnership and pregnancy). However, unlike direct and indirect discrimination claims, a comparator is not required in harassment claims so there is no need to compare your treatment with the treatment of someone else who doesn’t have the same protected characteristic as you.
That being said, case law does impose key restrictions on when harassment is said to have taken place. One such recent case, Adam Greasley-Adams v Royal Mail Group Limited, which was heard in the Employment Appeal Tribunal (EAT), has clarified that harassment only occurs when the victim becomes aware of the unwanted conduct.
The claimant, Adam Greasley-Adams was an individual with Asperger’s Syndrome. He brought a claim in the employment tribunal for harassment against his employer as he said that they had allegedly leaked his confidential information. He also alleged that his colleagues had been spreading rumours and making unpleasant comments about his autism.
The claimant only became aware of the alleged harassment after he himself was the subject of a harassment claim and the grounds for his own harassment claim came to light. Accordingly, the employment judge ruled that the claimant could not have been harassed prior to being aware of the conduct in question.
The judge emphasised that a key consideration when assessing the second limb of the test in section 26 of EQA 2010 is Person B’s perception of the conduct and whether it is reasonable for the conduct to have the stated effect. The judge concluded that if the claimant was not aware of the conduct in question, then they could have had no perception of it and so could not be made to feel as if their dignity had been violated or that an adverse environment; had been created.
Furthermore, it was held that once the claimant became aware of the unwanted conduct it would not be reasonable to consider that this had the effect of violating the claimant’s dignity or creating an adverse environment going forward. This was due to the fact that the information was acquired through previous investigations into the claimant’s own harassing behaviour and that relationships between colleagues had completely broken down.
In this regard, the means by which the unwanted conduct had come to light and the specific circumstances of the case were essential.
This blog first appeared on People Management Magazine on 4 September 2023.
If you require further guidance or would like further legal advice, call our multi-award-winning Employment team on 0333 323 5292.
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