An interesting – and entirely new – point arose in the case of Peninsula Business Services Ltd v Baker. Mr Baker was employed by Peninsula to represent its clients in employment tribunal cases. At first his relationship with his employer was good, but then suspicions arose that he was attempting to avoid doing his fair share of cases and potentially undertaking unauthorised private work elsewhere.
He told his employer that he was struggling with his workload and that he had been diagnosed with dyslexia. A series of meetings and consultations took place to consider whether this made it necessary for any reasonable adjustments to be made. A senior manager then decided to engage a private firm to carry out covert surveillance of Mr Baker to see if he was devoting his full time and attention to his work. The result of that surveillance revealed that he had made visits of between one and three hours each day to his mother and it was considered that there was enough evidence to take forward in a disciplinary process. Mr Baker was told of the surveillance and given details of what it had found. He found this information very upsetting and claimed that it caused to him to have sleepless nights, feelings of paranoia and a reluctance to talk on the phone. He claimed harassment and victimisation.
In his claim, he did not seek to prove that he was actually disabled as a result of his dyslexia. He argued that his claims could succeed whether he was disabled or not. His treatment had been ‘related to’ disability in the sense that it was prompted by his telling the employer that he believed himself to be disabled. It was also clear that by asking for reasonable adjustments to be made he had done a ‘protected act’ – whether he was disabled or not – and was entitled not to be victimised.
The tribunal agreed – even though it based its decision on the assumption that Mr Baker was not in fact disabled. It found that the controversial decision to place Mr Baker under covert surveillance was taken – at least in part – in response to his claim to have dyslexia. Part of what the employer was seeking to establish was whether that was a genuine condition. While the surveillance itself could not amount to harassment – because Mr Baker did not know it was happening – it was nevertheless harassment to tell him about it afterwards. It was unwanted conduct which related to disability and which created an intimidating, hostile or offensive environment. Since the surveillance was prompted by his request for reasonable adjustments, it also amounted to victimisation.
The EAT overturned these findings. While the Equality Act was wide enough to cover harassment based on another person’s characteristic or where a protected characteristic was wrongly ascribed to a Claimant – that was not the same as a situation in which an employee merely claimed to be disabled but in fact was not. In such a case, there was not a sufficient link between the protected characteristic of disability and the treatment complained of. In any event, the employer had been obliged to disclose the fact of the surveillance in order to conduct a fair disciplinary process, so this could not in itself amount to harassment; it was not reasonable for the employee to be offended by it. As to victimisation, the facts found by the tribunal did not justify the finding that the surveillance was ordered specifically in response to Mr Baker’s protected acts. The claims of harassment and victimisation were therefore dismissed.
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