420: Can conduct which comes to light during a grievance investigation amount to harassment?
Harassment is defined in the Equality Act 2010 as unwanted conduct that has the purpose or effect of violating dignity or creating an intimidating, hostile or offensive environment. Key factors to consider are the employee’s perception, the other circumstances of the case, and whether it was reasonable for the conduct to have that effect. In Greasley-Adams v Royal Mail Group Limited, the EAT had to consider whether an employee could suffer disability harassment when he had become aware of the conduct only during the course of a grievance investigation.
Mr Greasley-Adams, who has Asperger’s Syndrome, was employed by Royal Mail as a driver. Following a dispute about his work patterns and duties, two of his colleagues brought bullying and harassment grievances against him, which were upheld. Mr Greasley-Adams then submitted a grievance with a number of complaints against both of these colleagues. His grievance was dismissed. During the grievance process, Mr Greasley-Adams became aware of conduct and comments which he alleged amounted to harassment. These included the spreading of rumours about him as well as colleagues making disparaging remarks and making fun of his disability. He subsequently brought various Tribunal claims including a claim that his colleagues had harassed him because of his disability by subjecting him to unwanted conduct that violated his dignity.
The Employment Tribunal dismissed the harassment claim. Although the unwanted conduct had taken place, it could not constitute harassment as defined in the Equality Act because Mr Greasley-Adams had only become aware of it as a result of the grievance investigation. Since he was unaware of the conduct at the time it happened, the Tribunal held that it could not have had the effect of violating his dignity.
Mr Greasley-Adams appealed, arguing that the Tribunal had failed to take his perception into account as required by the Equality Act definition of harassment. He argued that his dignity could still be violated even though he had not been aware of the harassing conduct at the time it occurred. The EAT dismissed the appeal, noting that although the victim’s perception is a key element of harassment, if there was no awareness, then there could be no perception. The EAT also agreed that it was not reasonable for the conduct to amount to harassment since it had only been discovered in the context of a grievance investigation.
This decision confirms the importance of personal perception in harassment cases. The Equality Act does not state whether the victim’s perception of the harassment has to be judged at the time of the relevant conduct, but it is clear that harassment can only occur when there is awareness of it. The circumstances in which an employee becomes aware of unwanted conduct are key to assessing whether it is reasonable for it to have a harassing effect.
In this case, the Tribunal emphasised the likelihood that matters would emerge during the grievance investigation which the employee would not like, so they could not reasonably have violated his dignity. The Tribunal also helpfully noted that it would not be reasonable for employers’ investigations and interviews with colleagues to be constrained if matters emerging from the investigatory process were alleged to be harassment. However, conduct which only comes to light later during an investigation or by other means could constitute harassment if it meets all elements of the statutory definition, including the perception and reasonableness tests. This will depend on the precise facts and circumstances in each case.