Governing Body of Windsor Clive Primary School & Anor v Stephanie Forsbrook & Anor

For harassment under section 26 of the Equality Act 2010, conduct need not be caused by a protected characteristic, but it must have a clear connection with it. An Employment Tribunal must identify the precise conduct relied on and explain how it is related to the disability.

Unwanted conduct is ordinarily assessed from the claimant’s subjective perspective. Where harassment is alleged by effect rather than purpose, the Tribunal must also explain why it was reasonable for the conduct to create the prohibited environment. If an ordinary absence procedure is not itself unwanted conduct, the Tribunal must identify what was separate from, or additional to, that procedure.

The claimant, who was disabled by asthma, brought several employment claims. The Employment Tribunal dismissed all claims except one allegation of disability-related harassment. It held that two erroneous letters requiring her to attend a stage 2 absence meeting, and subsequent correspondence, created an intimidating environment.

The stage 2 process had been initiated because an administrative error recorded a formal caution after an earlier absence meeting, although the claimant’s absences had been discounted. The respondents appealed the successful harassment finding. The central issues were whether the Tribunal had adequately identified conduct related to disability and unwanted conduct under section 26 of the Equality Act 2010.

1. Appeal allowed and harassment finding remitted. The Employment Tribunal gave insufficient reasons for its conclusion that the correspondence was harassment related to the claimant’s asthma.

2. The expression “related to” in section 26 is broader than causation and does not impose a “but for” test. It nevertheless requires a connection between the identified conduct and the protected characteristic. The Tribunal had to identify the conduct creating the alleged prohibited environment and explain its relationship to the claimant’s disability. It did not do so.

3. The Tribunal had found elsewhere that the absence procedure itself was not unwanted conduct. It was therefore required to explain what in the erroneous use of that procedure, or in the letters and follow-up correspondence, was separate from or additional to the procedure and made the conduct unwanted.

4. Unwanted conduct should generally be assessed subjectively, from the claimant’s perspective. But, unless conduct has the proscribed purpose, an allegation based on its effect requires consideration of the claimant’s perception, all the circumstances, and whether it was reasonable for the conduct to have that effect under section 26(4) of the Equality Act 2010. The Tribunal did not sufficiently explain the reasonableness of the asserted intimidating environment.

5. The errors were material, but the EAT could not decide that the only possible outcome was dismissal. The broad “related to” test left factual connections which the Tribunal had not addressed and which the EAT could not supply. Applying [2014] EWCA Civ 449, the matter was remitted to the Tribunal, without further evidence, to decide on argument whether the conduct was related to disability and whether it was unwanted in the requisite sense.

6. The perversity ground had no substance. The defect was one of legal analysis and inadequate reasons, rather than findings that no reasonable Tribunal could have made.

• Employment Appeal Tribunal: allowed the respondents’ appeal and remitted the successful harassment allegation for reconsideration under section 26 of the Equality Act 2010 ([2024] EAT 183).
• Employment Tribunal: in a reserved judgment promulgated on 23 November 2022, dismissed the claimant’s other claims but upheld one allegation of disability-related harassment.