Disability-related harassment requires proven disability
Tuesday 14th March 2017
The EAT, in Peninsula Business Service Limited v Baker, has held that a claimant must establish that they are disabled under the Equality Act 2010 before they can succeed in a claim for disability-related harassment.
Mr Baker informed Peninsula that he had dyslexia and requested reasonable adjustments. An occupational health provider concluded that Mr Baker was likely to be considered disabled and recommended reasonable adjustments. However, Peninsula suspected Mr Baker of working elsewhere, so initiated third party surveillance. Although this suspicion was not substantiated, Peninsula did consider that Mr Baker was not devoting his time fully to his work. Disciplinary proceedings followed and a copy of the surveillance report was sent to Mr Baker.
Mr Baker argued that placing him under surveillance, and then telling him about it, was unwanted conduct related to his disability. He also alleged that disclosing his disability and requesting reasonable adjustments constituted protected acts and the surveillance amounted to a detriment. He brought claims of harassment and victimisation.
The ET found that the surveillance was not harassment, as Mr Baker was not aware of it at the time, but telling him for disciplinary purposes was harassment. His victimisation claim was also successful.
However, the EAT allowed Peninsula’s appeal. To succeed in the harassment claim, Mr Baker first needed to satisfy the definition of disability. Referring to J v DLA Piper UK LLP, the EAT considered liability for harassment did not arise where disability was merely asserted. The EAT held that victimisation was the appropriate claim. As the surveillance report was provided to Mr Baker in accordance with the ACAS Code of Practice on Disciplinary and Grievance Procedures, the EAT held it could not reasonably be found to have the effect of harassment.
Peninsula’s appeal in respect of the victimisation claim was also successful, with the EAT holding that the ET had not applied the correct test or made sufficiently precise factual findings. The EAT also held that Peninsula was not liable for the surveillance carried out by the third party, as the agent did not know of the protected act.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.