Employee needs to be aware of harassment for claim

In the case of Greasley-Adams v Royal Mail Group Ltd [2023], the Employment Appeal Tribunal (EAT) upheld an employment tribunal decision dismissing a claim of harassment by an employee who during the course of an investigation into allegations that he had bullied and harassed two colleagues, discovered various disparaging statements made about him by other colleagues, which he claimed had violated his dignity.

The Claimant, Mr Greasley-Adams (G-A), was employed as a driver by the Royal Mail. He has Aspergers’ syndrome, which was agreed amounts to a disability. Relations deteriorated between himself and two of his colleagues who raised grievances against him for bullying and harassment which were upheld. G-A thereafter submitted a grievance stating that he had been bullied by management and colleagues due to the disclosure of confidential information about him (including spreading rumours and negative comments as well as discussing his disability). These had arisen as part of the investigation into the bullying and harassment complaints made against G-A. His grievance was rejected following an investigation.

The EAT rejected the contention that any harassment could have occurred before he had learned about the statements and, therefore, the tribunal was correct only to have regard to unwanted conduct of which the employee was aware. The ‘perception’ of the claimant is a key mandatory element of determining whether harassment occurred and if a claimant has not perceived any unwanted conduct, they could not claim to have had their dignity violated. If there was no awareness, there could be no perception.

Further, the EAT held that the tribunal had been correct to find that it was not reasonable for the unwanted conduct to have had the effect of violating the claimant's dignity, given the context of the underlying investigation. The tribunal had not taken the view that it was never reasonable for a claimant to perceive that their dignity had been violated by conduct, which only came to light during an investigation. However, in the circumstances and context of this case, the tribunal had been entitled to consider these factors when determining reasonableness.

This decision is a good reminder of the test for whether harassment has occurred, which depends on the subjective question of whether the claimant ‘perceives’ themselves to have suffered from harassment and the objective test of whether it was reasonable for the conduct to be regarded as having that effect. Therefore, G-A could not have perceived that he was suffering from harassment as he was not aware of it at the crucial time. Upon becoming aware, it was still not reasonable for G-A to regard this as harassment in the context of the grievance investigation. Given the nature of the investigation, “things would emerge which the claimant did not like” otherwise this could constrain any investigations that employers undertake which would not be practical.

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