NO CLAIM FOR HARASSMENT WHERE DISABILITY NOT PROVED

This was a case considered by the Employment Appeal Tribunal (EAT).

The Claimant, Mr Baker, was employed as a lawyer by Peninsula Business Services Limited. He claimed he suffered from dyslexia, that this was a disability and that it affected his ability to perform his job. Mr Baker was referred to occupational health. The report concluded that he was likely to be considered disabled and recommended reasonable adjustments.

The Director of Legal Services, Mrs English, (who was not aware of Mr Baker’s disability), arranged for an external company to subject Mr Baker to covert surveillance. She believed Mr Baker was secretly working elsewhere and building up a private case load whilst working for and being paid by Peninsula. On review, the surveillance showed that for 4 out of the 5 days of surveillance, Mr Baker was actually visiting his mother between 1 -3 hours a day and during working time.

Mr Baker was invited to attend a disciplinary hearing where he was informed about the surveillance. Mr Baker, upset by this information, went on sick leave. In a letter to his line manager, he asserted his disability. When pleading his claim for disability harassment, Mr Baker argued that putting him under surveillance and then informing him about the surveillance, amounted to unwanted conduct relating to the protected characteristic of disability, which subsequently had the effect of violating his dignity and/or creating a hostile, degrading, humiliating or offensive work environment.

Whilst Mr Baker was not dismissed following the disciplinary hearing, he was later made redundant. Mr Baker subsequently brought claims of disability harassment and victimisation. Whilst the Tribunal made no finding that Mr Baker was in fact disabled, both claims were upheld.

The decision was appealed to the EAT. Peninsula’s argument was that a claim of harassment could not be brought where an individual claims, but has not proved, that they have a disability. The EAT agreed and the case was dismissed.

Whilst the EAT ruled against Mr Baker on the grounds that his disability was not proved, it is important to be mindful of the scenarios where individuals can bring discrimination or harassment claims where there is no protected characteristic such as:

• An individual is wrongly perceived to have a protected characteristic and is subject to harassment or another form of discrimination because of that characteristic;
• Where A does not have a protected characteristic but is closely associated with someone who does, and A is subsequently harassed in relation to the protected characteristic (discrimination by association); or
• Where B attributes a protected characteristic to A and subjects A to harassment related to a characteristic that B has attributed to A (discrimination by perception).

If you require any further advice on this, or any other Employment law matter, please contact the Chattertons Employment law team at your nearest office.