Betsi Cadwaladr University Health Board v Hughes & Ors

For disability-related harassment, the statutory language requires a serious and marked effect. A tribunal must assess the claimant’s perception, all the circumstances, and whether it was reasonable for the conduct to have violated dignity or created the proscribed environment.

The assessment may properly consider the cumulative effect of a continuing deterioration in an employee’s work and status. It must not artificially divide a persistent state of affairs into isolated incidents. For limitation purposes, whether conduct extends over a period is a factual assessment. It does not require a policy or practice.

A senior nurse developed Parkinson’s disease and could no longer undertake clinical work. Her employer preserved her grade and salary by creating a non-clinical role. The Employment Tribunal found that the role progressively became menial and that this, together with other matters, amounted to disability-related harassment contrary to sections 26 and 39 of the Equality Act.

The employer appealed against the harassment findings. It challenged particular incidents, the Tribunal’s reliance on an unpleaded performance-management proposal, and the conclusion that the harassment claim was in time.

1. Appeal allowed in part. The Tribunal erred in treating the letter to consultants, referrals to occupational health, and the unpleaded performance-management proposal as individual incidents of harassment. The letter was objectively supportive and accurate. On the findings, the occupational-health referrals were supportive measures and could not reasonably have had the statutory effect.
2. The Tribunal should not have founded a harassment finding affecting compensation on the performance-management proposal where it had not been pleaded or advanced as harassment by legally represented parties. It was nevertheless entitled to retain the evidence in mind when determining other issues, including whether there was a continuing state of affairs.
3. The errors did not undermine the central finding. The Tribunal was entitled to find that the employer had allowed or caused the claimant’s meaningful grade 6 role to deteriorate into menial work. In context, that conduct could reasonably be found to violate her dignity. The Tribunal had considered her perception, the surrounding circumstances, the employer’s good intentions, and the objective reasonableness requirement under section 26 of the Equality Act.
4. The limitation challenge failed. Under section 123 of the Equality Act, whether conduct extends over a period is a question of fact. The Tribunal was entitled to find a continuing state of affairs and, alternatively, to extend time on a just and equitable basis while the internal grievance was being concluded.
5. The adverse findings on the discrete incidents were substituted, but the overall finding that the employer unlawfully harassed the claimant remained. Any consequential effect on compensation was left to the parties to resolve.

• Employment Appeal Tribunal: Appeal allowed in part. Discrete harassment findings were set aside, but the principal finding of disability-related harassment was preserved.
• Employment Tribunal, Rhyl: In reasons delivered on 3 January 2013, dismissed all complaints except the harassment complaint, which succeeded; the unfair-dismissal complaint was treated as premature pending an internal appeal.