Disability discrimination and perception of victim

Amanda Okill

Senior Associate

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August 8, 2019

Categories Employment Law Updates

One of the factors that can make dealing with allegations of harassment difficult is that conduct that one person finds offensive might be regarded as perfectly harmless by another.

The Equality Act provides that in determining whether harassment has occurred the Tribunal should consider the perception of the alleged victim – but also whether it is ‘reasonable’ to regard the conduct as having the effect of violating the employee’s dignity or creating an ‘intimidating, hostile, degrading, humiliating or offensive environment’.

In Ahmed v The Cardinal Hume Academies the employee – who was a trainee teacher – argued that he was harassed when his new employer sent him home after learning that he had difficulty with his handwriting. He had dyspraxia and found handwriting both difficult and painful. When he entered the teaching profession under the ‘Teach First’ scheme he considered that his difficulties could be overcome by the use of technology – including PowerPoint. But he ran into difficulties on his first training assignment when he tried to explain this to his new employer.

The headteacher – who described himself as a ‘chalk and talk old-school teacher’ – was concerned that being unable to write longhand would make it practically impossible for Mr Ahmed to have sole responsibility for a class of business students preparing for an exam. He sent Mr Ahmed home while he took advice on how to proceed.

After a few days the suspension was brought to an end and Mr Ahmed was invited back into work for a meeting to discuss the situation. However Mr Ahmed resigned claiming that he had been subjected to disability-related harassment.

The Tribunal rejected his claim.

They accepted that the meeting at which he had been sent home amounted to unwanted conduct which was related to his disability – and that he had been upset by it. However, the Tribunal held that the headteacher had not been aggressive or demeaning towards Mr Ahmed – although he had been sceptical about the suggestions that he had been putting forward. The Tribunal concluded that it was not reasonable for Mr Ahmed to treat the conduct of the headteacher as violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. On that basis they dismissed his claim and Mr Ahmed appealed.

He argued that the question of whether it was reasonable to regard the unwanted conduct as having the effect required to support a claim of harassment was just one factor that the Tribunal should take into account and needed to be balanced with other factors – such as his own perception of the employer’s conduct. The EAT rejected this argument. Once the Tribunal had concluded that the conduct could not reasonably be seen as having that effect, then no claim of harassment could succeed. The appeal was dismissed.

This case is useful in that it confirms that although the perception of the employee is important in assessing whether or not harassment has occurred, there is still an objective standard to apply. If the employee’s perception is simply unreasonable then the conduct in question will not amount to harassment.

For further information contact our employment law team on 01227 763939.