Adam Greasley-Adams v Royal Mail Group Limited

The Employment Appeal Tribunal dismissed the claimant's appeal against the Employment Tribunal's dismissal of his claims under s 47B Employment Rights Act 1996 and sections 26 and 27 Equality Act 2010. The EAT affirmed that the harassment test in s 26 EqA is cumulative and requires consideration of the claimant's perception under s 26(4)(a) as a mandatory element: if the claimant was unaware of the conduct, there could be no subjective perception and therefore no harassment on that basis. The EAT also held that the ET did not err in its objective assessment of reasonableness, taking into account the context in which the conduct emerged (the bullying and harassment investigation). The tribunal's limited extension of time for out-of-time complaints was held to be explicable on a just and equitable basis and the perversity challenge to findings on causation for the victimisation complaint failed because the ET's conclusion was open on the evidence.

Background and parties. The claimant, a disabled employee (Asperger’s Syndrome), worked for the respondent as a part-time MGV driver. He brought claims before the Employment Tribunal under s 47B ERA (whistleblowing deterrent) and sections 26 (harassment) and 27 (victimisation) of the Equality Act 2010. The ET, after a 7-day hearing, dismissed all claims in a reserved judgment dated 27 August 2021 and made limited amendments on reconsideration on 1 December 2021. The claimant appealed to the EAT.

Procedural posture. The appeal advanced four grounds condensed under three headings (harassment, time bar and victimisation). The EAT heard argument on 1 March 2023; the claimant was represented by his lay representative (his wife) and the respondent by counsel.

Nature of the application / relief sought. The claimant sought to overturn the ET's dismissal of his harassment and victimisation complaints and to challenge the ET's decision on time limits and findings of fact (a perversity challenge). Not stated in the judgment are the specific remedial orders sought beyond allowing the appeal and remitting or upholding the complaints.

Issues framed.

• Whether, for the purposes of s 26 EqA, conduct can have the proscribed effect of violating dignity or creating a hostile environment in the absence of the claimant's awareness.
• Whether the ET erred in its objective assessment of reasonableness by focusing on the context in which the conduct emerged (an internal bullying and harassment investigation) and by failing to consider other relevant circumstances.
• Whether the ET misapplied the just and equitable extension of time and whether the phrasing of the reconsideration decision limited the extension incorrectly.
• Whether the ET’s finding that the bullying and harassment complaints were not submitted because of protected acts was perverse.

Court’s reasoning and conclusions. The EAT held that s 26 requires a cumulative test incorporating both the claimant’s subjective perception and an objective reasonableness assessment; consequently, where the claimant lacked awareness of the conduct there could be no subjective perception and no harassment on that basis. The tribunal’s reasoning that the context of a bullying and harassment investigation was a relevant factor in the objective assessment of reasonableness was lawful and open on the evidence. The modest time extension in the reconsideration judgment was explicable on a just and equitable basis and, when read as a whole, the ET had in any event considered all complained-of conduct. The perversity challenge failed because the ET’s factual conclusion on causation was supported by the evidence and did not meet the high threshold for perversity. The appeal was dismissed.

Appeal dismissed. The EAT held there was no error of law in the ET’s approach: s 26 EqA requires consideration of the claimant’s perception (subjective element) and an objective assessment of reasonableness; the ET lawfully took the context of the bullying and harassment investigation into account in the objective assessment; the limited extension of time in the reconsideration decision was justifiable; and the perversity challenge to the ET’s factual finding on causation for the victimisation complaint failed because the ET’s conclusion was open on the evidence.

Employment Tribunal (Dundee) reserved judgment dismissing all claims dated 27 August 2021; reconsideration decision dated 1 December 2021 substituted paragraphs 179 and 243 but otherwise confirmed the ET decision; appeal to the Employment Appeal Tribunal, leading to judgment [2023] EAT 86 (appeal dismissed).