Peninsula Business Services Ltd v Baker

A claim for harassment related to disability requires an actual disability, or another recognised connection with the protected characteristic. A claimant’s unsupported assertion of disability is insufficient. Victimisation requires the employer to subject the claimant to a detriment because of a specific protected act, and the employer must know of that act. The tribunal must identify the reason for the detriment rather than apply a simple “but for” or “related to” test.

Under section 109 of the Equality Act 2010, an employer is liable for an agent’s act only where the agent’s own conduct contravenes the Act. The principal’s knowledge and motive cannot be combined with an innocent agent’s conduct to create liability.

The claimant, an employed lawyer, alleged that covert surveillance and subsequent disclosure of the surveillance report amounted to harassment related to disability and victimisation. He relied on assertions that he was dyslexic and required reasonable adjustments, but the Employment Tribunal did not determine whether he was disabled under section 6 of the Equality Act 2010.

The Employment Tribunal upheld the harassment and victimisation complaints. The employer appealed, challenging the legal basis and reasoning of those conclusions, the treatment of surveillance undertaken by its external agent, findings concerning disciplinary matters, and the accuracy of the formal judgment. The central issues concerned the scope of disability harassment, the proper causation test for victimisation, and the operation of employer and principal liability.

1. Harassment. The appeal was allowed. Harassment related to disability requires the claimant to possess the protected characteristic, or to fall within a recognised category such as associative or attributed discrimination. A claim cannot succeed merely because the claimant asserts that he has a disability which has not been established under section 6 of the Equality Act 2010. Victimisation is the statutory protection adapted to allegations of disability, including allegations later shown to be false where made in good faith.

2. The Employment Tribunal also failed to apply section 26(4) of the Equality Act 2010. The tribunal must make findings about the claimant’s perception, the relevant other circumstances, and whether it was reasonable for the conduct to have the proscribed effect. It is insufficient merely to recite those matters. The tribunal remains the arbiter of the statutory effect. Disclosure of evidence for disciplinary purposes, where fairness and the ACAS Code require disclosure, could not reasonably have the proscribed effect on the facts found.

3. Victimisation. The Employment Tribunal applied the wrong approach to “because of”. It had to ask what consciously or subconsciously was the employer’s reason for the detriment, applying Chief Constable of West Yorkshire Police v Khan. The employer’s knowledge and reason had to relate to a specific actual protected act, or a specifically believed protected act. General knowledge of a theme or of protected information was insufficient. The findings did not establish the necessary knowledge or reason.

4. Surveillance agent. Section 109 of the Equality Act 2010 attributed an agent’s act to the principal, but only where the agent’s act was itself a contravention of the Act. Because the surveillance agent lacked knowledge of the protected acts and did not act because of them, it did not victimise the claimant. The employer’s own knowledge and motive could not be combined with the agent’s innocent conduct.

5. The Employment Tribunal also erred by making findings on unpleaded disciplinary issues and on remedy-related matters outside the liability hearing. The formal judgment was inaccurate, but no remission was ordered because the substantive claims failed.

• Employment Appeal Tribunal: allowed the employer’s appeal from the Employment Tribunal’s decision sent to the parties on 18 May 2016. The harassment and victimisation conclusions were set aside, with no remission required.