Covert surveillance of an employee… A disability the employer thought was feigned… Not the latest blockbuster spy thriller but a judgment of the EAT, reversing an ET decision on harassment and victimisation.
Background
Mr Baker had been employed by Peninsula Business Services Ltd (PBS) for 5 years as an employment tribunal advocate. He had asserted at least twice to PBS that he might be dyslexic and provided excerpts from a psychologist’s report confirming a dyslexic diagnosis. These were the protected acts upon which he later relied in his victimisation claims and which the ET upheld.
PBS referred Mr Baker for an occupational health report, which concluded that he was likely to be considered disabled and recommended reasonable adjustments. Meanwhile, PBS also engaged a third-party covert surveillance firm to follow him for a week. PBS’s stated reason for wanting covert surveillance was that it believed Mr Baker was working elsewhere, which the ET found was not substantiated by the surveillance report.
On four out of the five days of surveillance, however, he did visit his mother for one to three hours during the working day. This may have been the part of the report that led PBS to conclude that he was not devoting all his time to his work. Disciplinary proceedings were initiated, during which the surveillance report was disclosed to Mr Baker. At trial, PBS explained that they had disclosed the report to him in disciplinary proceedings in order to comply with the ACAS Code of Practice.
Mr Baker was not dismissed as a result of the above disciplinary proceedings. He was dismissed for redundancy sometime after presentation of the ET1.
In his ET, he brought claims of harassment and victimisation. The ET upheld his claims in part. The ET judgment included a conclusion that PBS’s decisions to authorise the covert surveillance and to carry it out amounted to victimisation, and that separately, its use of the covert surveillance report in disciplinary proceedings was harassment.
EAT judgment
The EAT allowed PBS’s appeal. It made a number of interesting points:
- Disability must be proved, not asserted (except in cases of association or perception).
Mr Baker relied on having asserted that he was disabled, but had not proved he was disabled. The parties had not asked the ET to decide whether or not Mr Baker was disabled in accordance with section 6 of the Equality Act 2010. The EAT therefore concluded that Mr Baker had not put his case in reliance on being disabled under the Act. A claim in harassment on grounds of unwanted conduct related to disability cannot succeed where disability is not proved, unless the claim is one of association (as in Coleman v Attridge Law) or perception (as in English v Thomas Sanderson Blinds Ltd). Without a finding of disability, the Claimant could not prove harassment related to disability.
The EAT contrasted harassment with victimisation: under victimisation a claim can be brought by a person falsely claiming to be disabled, so long as that information is not given in bad faith. This provides a salutary lesson for practitioners. Where the protected characteristic is disability, it is always important to establish the fact of disability, whether by agreement or through contested evidence.
- An employer’s ACAS-compliant disclosures in disciplinary proceedings cannot amount to harassment.
The simple act of disclosing the surveillance report could not amount to harassment if done to comply with the ACAS Code of Practice. To hold otherwise would compel the employer to conceal the report, in breach of the ACAS Code, for fear of a harassment claim being made out. Were the EAT to hold otherwise, it would place the employer between Scylla and Charybdis – facing a harassment claim upon disclosure and an unfair dismissal claim upon non-disclosure. The EAT’s finding does not, of course, prevent the disclosure of a report in disciplinary proceedings from ever amounting to harassment. One could conceive of examples where it has to be presented to comply with the ACAS Code, but the way in which it is presented or an additional motivation for its presentation constitutes harassment.
- The correct causation test in considering victimisation is “because of” (not “but for” or “related to”).
In considering victimisation, the ET ought to have determined whether PBS subjected Mr Baker to a detriment because of Mr Baker’s protected acts, but it did not. Firstly, the ET’s use of the word “trigger” suggested that it was applying a “but for” test. Secondly, the ET was inconsistent in what the “trigger” actually was for PBS authorising the surveillance: its conclusions pointed inconsistently to the protected acts and away from them.
- An employer cannot be vicariously liable where the alleged victimisation was carried out by an agent who lacked knowledge of the protected acts.
Section 109 of the 2010 Act makes an employer liable for victimisation carried out by an agent or employee. Where, however, the agent was unaware of the protected acts and therefore could not be found liable for victimisation, there could be no vicarious liability. Section 109 does not impose vicarious liability where the act of the agent or employee is not itself tortious.
The EAT transcript for Peninsula Business Services Ltd v Baker can be found here.