Mark Shulman*, Consultant Solicitor at Keystone Law

*HARASSMENT
Was an employer's covert surveillance of an employee an act of harassment on the grounds of disability? In the case of [Peninsula Business Service Ltd v Baker ]()UKEAT/0241/16/RN the EAT had to consider the novel point as to whether there could be a claim of harassment on account of disability, where the Claimant had not shown that he was actually disabled, but merely asserted that he had a disability.

Background
The Claimant was a lawyer with the Respondent. He was referred to an occupational health doctor after he told the Respondent he thought he might be dyslexic. The doctor recommended reasonable adjustments and said that the Claimant was likely to be considered disabled.

The Respondent then authorised the covert surveillance of the Claimant as they had suspicions that the Claimant was possibly guilty of misconduct by "moonlighting" during the time he was being paid by them. After the Respondent told him about the surveillance, the Claimant claimed that putting him under surveillance was unwanted conduct related to the protected characteristic of disability, which had the effect of violating his dignity and/or creating an intimidating, hostile, degrading humiliating or offensive environment for him.

The ET's decision was that:

(i) neither the decision to put the Claimant under surveillance, nor the surveillance itself amounted to harassment, because the Claimant did not know about either at the time; but

(ii) telling the Claimant about the surveillance (for disciplinary purposes) was harassment.

The ET held that the Claimant's employer had subjected him to harassment related to disability, even though he was not a disabled person. The Respondent appealed.

*Section 26 EqA 2010
*Section 26 of the EqA 2010 provides that A harasses B if A engages in conduct "related to a relevant protected characteristic" (emphasis added) and the conduct has the effect of violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Could the Claimant succeed in a claim of harassment without showing that he had a disability, but simply by asserting that he had one?

At the EAT appeal the Respondent accepted that it is possible in some circumstances to bring a discrimination or harassment claim when a person does not have a protected characteristic. For example, there might be:

* associative discrimination (i.e. where A does not have a protected characteristic but the Claimant, with whom A is closely associated, does); a situation where A does not have a protected characteristic but one is attributed to him by B*, who subjects A to unwanted conduct (e.g. where a heterosexual man who was known by his tormentors to be heterosexual was subjected by colleagues to repeated name-calling suggesting that he was gay); a case where A is perceived (wrongly) by B* to have a protected characteristic and is subjected to proscribed conduct related to that protected characteristic (e.g. tormenting a person who the tormentor believed was gay, but who was not, would amount to harassment).

The Respondent argued that the EqA 2010 does not protect a person from harassment related to disability in circumstances where the victim simply claims to have a disability. The Respondent submitted that this would be a novel claim and that its existence was not supported either by the language of the EqA 2010 or of the relevant Directive (Directive 2007/78 EC).

Perceived disability argument "problematic"
The EAT agreed. The EqA 2010 accommodates cases where the protected characteristic is (actually) possessed by someone other than the Claimant. It also accommodates cases where a protected characteristic is attributed by the discriminator or harasser to the victim. In such a case, the concept of the protected characteristic causes the discriminator or harasser to act as they do (even if the protected characteristic is not possessed by the victim). However, where the protected characteristic is disability, a conclusion that unwanted conduct relates to a perceived disability was problematic because of the definition in section 6 of the EqA 2010 (which defines disability). A conclusion that unwanted conduct related to a disability which is claimed by the Claimant was even more problematic.

Therefore, the ET had erred in law in deciding that the Claimant could make a claim of harassment based on a disability which he claimed, but had not proved. On the basis of the ET's findings it would have had to dismiss the harassment claim because the Claimant had not shown that he was a disabled person within the meaning of section 6 of the 2010 Act. The harassment claim was therefore bound to fail. There was nothing to remit to the ET on the claim.

In [Kenbata v Westminster City Council ]()UKEAT/0063/16/JOJ, the EAT had to consider whether an ET had correctly decided that a harassment claim was not genuine.

*Background
*The Claimant, who described himself as Black British African, was a contractor supplied to the Respondent by an agency. A Support Officer for the team in which the Claimant worked placed a pot plant on her desk. A photograph of that plant was in evidence showing the plant as "larger than might be expected on an office desk". The Claimant emailed his Head of Department suggesting that the pot plant was a form of racial segregation. In response, the Head of Department queried how the pot plant could be an act of racial segregation. The Claimant responded by referring to section 13(5) of the EqA 2010, saying that he was not able to rule out that it was a form of racial segregation as it restricted the ease with which he could hold discussions with colleagues. The Claimant's line manager held a discussion about the pot plant complaint in an open plan office. The Claimant subsequently brought 29 complaints to the ET, only one of which succeeded.

The ET was satisfied that the positioning of the plant and its growth was not an act of direct discrimination. Whilst a discussion between the Claimant and his Head of Department in an open plan office about that allegation potentially amounted to harassment, the ET found that the complaint of harassment was not genuine and therefore dismissed the complaint.

However, the ET found that the discussion in an open plan office about the Claimant's racial segregation complaint relating to an overgrown pot plant amounted to victimisation as it ought to have been carried out confidentially. Although that complaint succeeded, the ET granted no remedy because it found that the Claimant had acted in bad faith (an act is not protected as victimisation under the EqA 2010 if an allegation is made in bad faith).

Inconsistency
At the Claimant's appeal to the EAT it was submitted that as the Respondent had by concession agreed that the Claimant's pot plant complaint was a protected act in terms of victimisation, it was therefore accepted as being made in good faith. Accordingly, so it was argued, it was not open to the ET to conclude that the complaint of harassment was not in fact genuine. The employer conceded that it had not been part of its case at the ET to dispute the genuineness of the Claimant's complaint. It seemed to the EAT that in these circumstances, neither party could have anticipated the ET's finding as to the lack of genuineness of the complaint.

The EAT agreed that there was an inconsistency between the Respondent's concession as to the protected act and the ET's finding that the pot plant complaint was not genuine and that approach had fed into their findings in deciding that there was no harassment claim made out.

It followed that the harassment claim required reconsideration by the ET (leaving out of account the genuineness of the Claimant's complaint of racial segregation). That was a narrow point which could be dealt by the ET by means of submissions and without further evidence.

The EAT commented that although there was no appeal on the point, the same reasoning on inconsistency applied in relation to the ET remedy decision on the successful victimisation complaint.

Vicarious liability
Who is liable for harassment under the EqA 2010? Section 109 of the EqA 2010 makes provision for the employer's or principal's liability for their employees or agents respectively. In [Unite the Union v Nailard ]()UKEAT/0300/15/BA, the EAT agreed that trade union officers were not (on the facts) employees and therefore the union did not have liability as employer for their actions.

Background
There were acts of sexual harassment by Mr S and Mr C, elected officers of the Respondent trade union, against the Claimant (a paid Regional Officer of the union). The Claimant was offered a transfer but then resigned. She won her claim for constructive dismissal.

There was no appeal against the ET's finding that Mr S and Mr C had bullied and sexually harassed the Claimant. However, the ET went on to find that the Respondent was vicariously liable for this unlawful conduct under section 109 of the Equality Act 2010 because either (1) the elected officers were employees of the Respondent, or (2) they were agents of the Respondent. The Respondent appealed against both these findings.

Were union officers employees?
Were the trade union officers "employees" within the extended meaning of the EqA 2010? Section 83(2) of the Equality Act 2010 defines "employment" as including "employment under a contract of employment, a contract of apprenticeship or a contract personally to do work". In the leading case of Jivraj v Hashwani [2011] IRLR 827 the Supreme Court examined section 83 in detail. It recognised that the meaning of "employee" had to be determined in accordance with EU law. The existence of the relationship of employment did not turn on whether the parties entered into a formal contract which would be recognised in domestic law as constituting employment. It depended on whether it met the criteria laid down by EU law and the ET had to look at the substance of the situation.

The EAT did not think it is possible to spell out from the trade union rule book any contract for the relevant officers personally to do any work and the ET was therefore wrong in determining that Mr S and Mr C were employees of the union. The members were voluntarily undertaking the duties of office; there was no commitment to any particular amount of work and no right conferred by the rules at all to remuneration.

*Agency
*In case it was wrong in its finding concerning vicarious liability on the basis of employment, the ET had referred to the case of [Kemeh v Ministry of Defence ]()[2014] IRLR 377 as being helpful with respect to agency and found that Mr S and Mr C were acting as agents for the Respondent. The union argued on appeal that this was wrong because Mr S and Mr C were:-

* not carrying out activities assigned to them by the union; * not under the control of the union as it could not direct what they did; * not in a fiduciary position; and * not subject to any express or implicit authorisation from the union to act as they did.

The EAT stated that the ET had been correct to take Kemeh as its starting point (a decision on section 32 of the Race Relations Act 1976, although the provisions of section 32 were broadly the same as those of section 109 and in the EAT's view there was no warrant for giving section 109 a different construction).

But there was an important distinction between section 109(1), which applies to employers (and which is subject to a statutory defence in section 109(4)), and section 109(2) which applies to principals. Under section 109(1) the principle is similar to the common law concept of vicarious liability. However, section 109(2) applies only where the agent discriminates in the course of carrying out the functions he is authorised to do – the statutory wording of section 109(2) states that "Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal." If the agent does act in that way, it does not matter whether the principal knew or approved of what the agent did (section 109(3) EqA 2010).

The ET had found that Mr S and Mr C were acting as agents for the Respondent because they were carrying out work on behalf of the Respondent at meetings in their dealings with local members, officers, other trade unions and employers. It was well within the scope of their authority to liaise with paid officers such as the Claimant. The EAT considered that the ET was entitled to reach this conclusion on agency. It mattered not that once Mr C and Mr S were elected, the Respondent had limited control over what they did - that would often be true of a principal who commissioned an agent to undertake tasks on his behalf. Further, there could be fiduciary duties owed to the union (e.g. the case of a branch officer who used his position to take bribes and where a fiduciary duty should arise). It did not follow that the Respondent could not be responsible for the acts of Mr C and Mr S because those acts were contrary to union policy - the fact that the principal would disapprove did not prevent the agent's act being treated as done by the principal: section 109(3).

Whilst it was true that the specific words and conduct amounting to sexual harassment were not approved by the Respondent union or even known in advance, it was plain from section 109(3) that that did not matter where, as in the present case, the perpetrators were carrying out authorised fuctions within the scope of the authority vested in them.

Accordingly, the EAT upheld the ET's judgment that the Respondent was liable for sexual harassment of the Claimant by its elected officers.

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Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator. His blog on new employment legislation can be found here.