Harassment
Covert surveillance
Case Peninsula Business Services Ltd v Baker [2017] ICR 714, EAT
Facts B was employed by PBS to provide legal advice and tribunal representation. He told PBS that he suffered from dyslexia, that his condition had worsened, causing him longer to do his work, and he requested that reasonable adjustments should be made. The director of legal services was suspicious and instructed agents to carry out covert surveillance. When B was told about this, he went on sick leave. He complained of harassment and victimisation. The employment tribunal found that the surveillance did not amount to harassment because B did not know about it. But telling B about the surveillance was harassment because it created a hostile, degrading, humiliating or offensive working environment. The complaint of victimisation was upheld: the requests for reasonable adjustments were protected acts, the surveillance was a detriment and B had been placed under surveillance because of the protected acts. There was a sufficient causal connection between the protected act operating on the mind of the employer as principal and the detriment represented by the conduct of its agents carrying out the surveillance. PBS appealed to the EAT.
Decision 1. The appeal was allowed.
2. Where the protected characteristic relied on was disability, it was difficult to conclude that the unwanted conduct related to a disability claimed but not established by the claimant. Further, a person who falsely claimed disability could not make a claim of discrimination but could make a claim of harassment. That could not have been Parliament’s intention. B had not proved disability.
3. To support a finding of victimisation, the claimant had to identify a specific actual or believed protected act and to show that the employer knew about that act and had imposed a detriment because of it. The tribunal had not specifically found that the requests for reasonable adjustment were the reason for the surveillance and had therefore erred in law.
4. Under the Equality Act 2010, a principal was liable for an act of an agent only if what the agent did was in itself discriminatory. As the agents did not know about the protected characteristic and were not motivated by it, they did not commit the tort of victimisation.