Adam Greasley-Adams v Royal Mail Group Limited

For harassment under section 26 of the Equality Act 2010, the claimant’s perception is a mandatory part of the cumulative statutory test. A person who was unaware of unwanted conduct could not perceive it as violating their dignity or creating the proscribed environment.

The objective reasonableness assessment must take account of all the circumstances. Where comments emerge during a proper bullying and harassment investigation, that context may make it unreasonable for the comments to have the proscribed effect, notwithstanding that the conduct was unwanted and subjectively offensive.

An appellate perversity challenge fails where the tribunal’s causal finding was open to it on the evidence viewed as a whole.

The claimant, a disabled employee of the respondent, brought claims for harassment and victimisation under sections 26 and 27 of the Equality Act 2010. The Employment Tribunal dismissed all claims after a seven-day hearing. On reconsideration, it amended two paragraphs but adhered to its decision.

The claimant appealed on grounds concerning harassment, the just and equitable extension of time, and alleged perversity in the rejection of his victimisation claim. The central issues were whether conduct unknown to the claimant could amount to harassment, whether the tribunal’s assessment of reasonableness was legally flawed, and whether its finding on the reason for colleagues’ complaints was perverse.

1. Appeal dismissed. The Employment Appeal Tribunal identified no error of law in the Employment Tribunal’s dismissal of the claims.

2. Section 26 of the Equality Act 2010 creates a cumulative test. The perception of the person alleging harassment is a mandatory component. A claimant who was unaware of the unwanted conduct could not perceive that it violated their dignity or created the proscribed environment. The Tribunal therefore made no error by treating awareness as material to the alleged effect of the comments.

3. The Tribunal had also correctly approached the objective limb of section 26. It accepted that the conduct was unwanted and that the claimant was offended by it. It was nevertheless entitled to consider the context in which it became known to him. The comments arose in a proper investigation of bullying and harassment complaints. It was legitimate to conclude that, in that context, it was not reasonable for the unwanted conduct to have the proscribed effect. The Tribunal had not confined itself merely to the claimant learning of the comments.

4. The time-bar ground failed. Although the revised wording of the Tribunal’s reconsideration decision was unfortunate, the decision read as a whole showed that it extended time in respect of matters of which the claimant became aware on or after 2 September 2019. In any event, it considered all alleged instances of unwanted conduct.

5. The victimisation finding was not perverse. The Tribunal was entitled to assess the evidence as a whole and find that the colleagues’ complaints arose from the effect of the claimant’s behaviours, rather than because he had done a protected act. There was ample evidential material for that conclusion.

• Employment Appeal Tribunal: appeal dismissed: [2023] EAT 86.

• Employment Tribunal: dismissed the claimant’s claims under sections 26 and 27 of the Equality Act 2010 by reserved judgment dated 27 August 2021. On reconsideration, it substituted two paragraphs but otherwise adhered to that result on 1 December 2021.