London United Busways Limited v Sener

For harassment related to disability, the tribunal must assess the claimant’s perception, all the circumstances, and whether it was reasonable for the conduct to have the proscribed effect under section 26 of the Equality Act 2010. The operational or welfare purpose of a communication is material context, but does not preclude harassment by effect.

Where meetings were legitimate welfare or investigatory meetings, findings that their discussion of a condition had a proscribed effect required adequate reasons identifying the manager’s conduct and explaining why the claimant’s perception was reasonable. By contrast, communications by operational controllers about toilet breaks and delays could amount to harassment by effect where inadequate internal communication of a known condition reasonably caused embarrassment and upset, despite no malign purpose.

The claimant, a bus driver with a urinary-tract condition, succeeded before the Employment Tribunal in a complaint of disability-related harassment. The tribunal found that repeated discussions by managers and route controllers about toilet use, breaks and delays formed continuing conduct from May 2018 to January 2019.

The employer appealed the upheld harassment complaint. It challenged the inclusion of welfare and investigatory meetings with managers, October 2018 controller communications evidenced by iBus reports, a January 2019 welfare meeting, and the conclusion that the complaint was in time.

The central issue was whether the tribunal had adequately explained why it was reasonable for the claimant to perceive the relevant conduct as violating his dignity or creating a proscribed environment.

1. Appeal allowed in part. The finding of harassment arising from communications by controllers survived. The complaint was therefore not wholly out of time.

2. Under sections 26(1) and 26(4) of the Equality Act 2010, the claimant’s perception, the other circumstances, and the reasonableness of the asserted effect must all be assessed. A welfare meeting following sickness absence, and an investigation of a Code Red incident, were important contextual matters. The tribunal had to explain what managers said or did which could reasonably have caused the proscribed effect. It made no such sufficient findings in respect of the May 2018 meeting with Ms Mitchell or the June 2018 meeting with Mr Etheridge. Grounds 1 and 2 succeeded.

3. The tribunal had expressly found that no toilet breaks were discussed at the January 2019 meeting, yet had included that meeting in its chronology of harassment. Its later acknowledgment of the error did not correct the operative decision. The January 2019 meeting had to be removed from the scope of the upheld complaint. Ground 3 succeeded.

4. Ground 4 failed. Controllers had a legitimate operational duty to regulate the route and investigate delays, but that did not prevent communications about frequent toilet breaks, slow driving and lengthy breaks from having a proscribed effect. The tribunal was entitled to rely on the failure to communicate the claimant’s condition and required allowances to controllers, reinforced by Mr Britto’s recommendations concerning iBus etiquette, internal communication and reasonable adjustments. The tribunal’s reasoning on this distinct strand was adequate.

5. Because the October 2018 controller communications remained meritorious conduct after the time-limit date, ground 5 failed. The May and June 2018 manager-related strands were remitted to the same tribunal, if available, for further consideration on the existing findings and any necessary further fact-finding. The controller-related harassment finding and entitlement to a remedy remained in place.

• Employment Appeal Tribunal: allowed the employer’s appeal in part, removed the January 2019 meeting from the upheld complaint, and remitted the May and June 2018 manager-related allegations for further consideration.
• Employment Tribunal, London South: upheld a complaint of disability-related harassment and dismissed the claimant’s other complaints. Reconsideration applications were refused on preliminary consideration.