Determining whether harassment took place

In this case, the Employment Appeal Tribunal confirmed that the question of whether harassment of an employee has taken place is answered by looking at the perception of the ‘victim’, and not the perception of the alleged harasser.

The claimant was diagnosed with Asperger’s syndrome in 2009; a disability that affected her communication, understanding and handling of and reacting to stressful situations. The claimant started a six-month probationary period with the respondent on 7th August 2012. On 15th February 2013, her sixth-month review was held. Three examples of reports were used to support the finding that her performance was unsatisfactory and her manager recommended dismissal. The respondent extended the probationary period, introduced a performance improvement plan (PIP) and agreed to further reasonable adjustments. Her second PIP meeting was held in June. Two weeks later, her manager reported that the claimant had not met performance objectives despite reasonable adjustments and support being in place. The claimant was given notice of her dismissal.

She made various claims to the tribunal in relation to the PIP meeting. During this meeting, the employment tribunal (ET) found that the manager had asked the claimant whether she was intelligent enough to understand a spreadsheet. The claimant replied along the lines that Albert Einstein was autistic but no one questioned his intelligence. Her manager’s manager also referred to the claimant as constantly rude although she believed this to be due to her personality and not her disability. When considering if there was discrimination arising from disability, the ET found that her manager’s comments were not because of her disability; he made them because of frustration at her lack of understanding of the spreadsheet and medical evidence suggested her disability had no impact on her ability to understand these. Similarly, the senior manager’s comments about rudeness were viewed by her as an observation about her personality and were not connected to disability. This led to their conclusion that there was no harassment because the conduct was not related to her disability.

On appeal, the employment appeal tribunal (EAT) confirmed that the question is whether the conduct is related to the protected characteristic. This is a broad test which needs to look at all the evidence, not just the harasser’s perception of their conduct. It is not likely that any harassers will view their conduct as harassing and will not volunteer that their conduct was, in fact, because of the protected characteristic. The question is whether, objectively, the conduct relates to the disability by looking at the overall picture. Legislation requires a view on how the ‘victim’ felt, not the intention of the alleged harasser.

“These types of cases show that employers really need to be careful with what they say. It isn’t an excuse for someone to say “I didn’t mean it like that” because the Tribunal is not swayed by the allegedly innocent intentions of the person who made the comment.” – Alison Kirk, Lead Business Partner

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