The EAT rejected a claim that covert surveillance of an employee claiming reasonable adjustments for dyslexia was harassment or victimisation.
The claimant was employed as a lawyer in employment tribunal claims, and alleged that being eventually told about the covert surveillance had significant effects on his mental health.
The Employment Appeal Tribunal (EAT) in Peninsula Business Service v Baker (bailii.org) rejected his claims for harassment and victimisation under the Equality Act on various grounds. For example (as regards victimisation) the EAT said that it was not enough that the surveillance would not have been ordered ‘but for’ his claim to the employer that he had a disability. See Covert surveillance>Harassment or victimisation under the Equality Act?
An unusual feature of this case as regards the harassment claim is that the claimant did not show his dyslexia was an actual disability. He argued he did not need to, he said an ‘asserted’ disability was enough when claiming harassment. The EAT rejected this argument. The EAT also suggested that even under the Equality Act 2010 there may be difficulties claiming for ‘perceived’ disability, ie without showing the person has an actual disability which meets the legal definition. See Perceived disability. (The possibility of claiming for ‘perceived’ disability is mainly relevant to direct discrimination and harassment. It does not apply to reasonable adjustments.)
The EAT in Peninsula also seems to indicate that for the employer to be liable for victimisation the person ordering the detriment must know of the particular emails etc from the employee claiming reasonable adjustments, for example, rather than just knowing he is asking for adjustments. However this would have odd results and may well be questioned in future cases. See Victimisation.