Can one turn conduct into harassment based on claimant perception?

In this blog, we will discuss harassment claim and the equality act 2010 and if it is enough for a claimant’s perception be to turn conduct into harassment?

A recap on Harassment

In violation of a person’s dignity or to create an intimidating, hostile, demeaning, humiliating, or offensive environment for that person, harassment is defined under Section 26(1) of the Equality Act as unwelcome behaviour connected to a relevant protected trait. The following factors need to be taken into account when determining whether conduct has the effect mentioned above:

• the idea of the individual who possesses the protected quality.
• The case’s additional circumstances.
• If it is fair to expect the behaviour to have that consequence.

The person’s subjective perspective is used to evaluate the effect. It doesn’t matter if the offender meant direct discrimination or to put that individual in a threatening, hostile, humiliating, or insulting setting.

The complainant’s health, cultural norms, context of recent incident that amount to harassment, as well as the milieu in which the conduct occurs, are just a few examples of the relevant elements that may need to be taken into consideration.

An objective test is whether the claim of harassment was reasonable for the behaviour to have the impact. Only in cases where it is fair to assume that the behaviour will have the desired effect on the individual will it be deemed to have that effect. Therefore, if the person is being “hypersensitive,” there won’t be any harassment as long as any offence was unintended.

Characteristics of direct discrimination

Age, handicap, gender reassignment, race, religion or belief, sex, and sexual orientation are the pertinent protected characteristics mentioned here. Although pregnancy, maternity, marriage, and civil partnerships are not relevant protected characteristics for harassment purposes, unpleasant behaviour in relation to these situations may constitute sex or sexual orientation harassment.

Is a claimant’s perception discrimination enough to turn conduct into harassment?

E.g. recently, the EAT looked at this issue. Mr. Ali was a security guard on the Heathrow Express train line in the case entitled Ali v. Heathrow Express and Redline Assured Security Ltd. The Heathrow airport hired Redline Assured Security Ltd to conduct security testing. Suspicious objects were occasionally planted as part of these security inspections to see how security personnel handled them. A test was performed utilising a bag that had a box, some electrical wiring, and a letter that clearly read “Allahu Akbar” written in Arabic. The tribunal specifically believed that Mr. Ali should have understood that using this phrase was not intended to link Islam with terrorism but rather was in reference to recent incidents, specifically the London Bridge, Westminster Bridge, and Manchester Arena Attacks, which had occurred earlier that same year.

Mr. Ali, a Muslim, was finally informed of the outcomes of this “security bag incident,” and he also viewed images of the bag and note. He maintained that Heathrow Express was vicariously liable for the activities of Redline’s representative and that Redline’s actions amounted to religious discrimination or harassment.

The decision was challenged by the claimant to perceive to EAT on the grounds that it was either perverse or lacked adequate justification. The EAT dismissed the appeal on both grounds, concluding that a claimant’s impression is only one factor the employment tribunal should examine when determining whether conduct amounted to harassment. The phrase had been used in connection with recent high-profile terrorist attacks, and it was, specifically, chosen for that reason, to reinforce the suspicious nature of the package. The EAT held that the employment appeal tribunal had been entitled to find that the conduct was not directed at Mr. Ali because of his religion, and that Mr. Ali should have reasonably appreciated that.

Key takeaways

Although the facts of this case were highly specific, it serves as a timely reminder that the s26 test for direct discrimination or harassment includes both subjective and objective elements, necessitating examination of both the person’s sentiments and the circumstances of the incriminating behaviour.

This case serves as a reminder to employers (or principals) that anything done by an employee while on the job (or an agent) may be construed as having been done by them as well, making them vicariously liable for the activity regardless of whether they knew about it or approved of it.

Solicitors for Employment Tribunal

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