The Employment Appeal Tribunal upheld a decision of the employment tribunal that a person cannot be harassed under the Equality Act 2010 if they are not aware of the unwanted conduct. The case involved a claimant with Asperger's Syndrome who alleged harassment under s 26 EA 2010 and victimisation under s 27 EA 2010 related to his disability under s 6 EA 2010.
Under s 26(1), harassment occurs when someone engages in unwanted conduct related to a protected characteristic, which has the purpose of violating the other person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment (see Disability, Q&A here). In determining whether harassment has occurred, the perception of the person claiming harassment, the other circumstances of the case and the reasonableness of the conduct's effect must be taken into account (s 26(4)) (see Disability, Q&A here).
In this case, the claimant argued that his dignity could be violated even if he was not aware of the unwanted conduct because dignity is how an individual is perceived by others. The EAT rejected this argument and, following Pemberton v Inwood [2018] EWCA Civ 564, confirmed that perception for the purposes of s 26(4)(a) is to be determined subjectively. In this case, the claimant had no awareness, so there could be no perception of harassment.
The EAT also rejected the claimant's argument that the employment tribunal had erred in considering the reasonableness of the unwanted conduct only in the context that the conduct had come to light, namely the bullying and harassment investigation that had been carried out by the respondent. While the tribunal had considered relevant circumstances, beyond the investigation, the judge confirmed that s 26(4) mandated consideration of the claimant's perception of the conduct, which was in this case only engaged during the bullying and harassment investigation.