In Hartley v Foreign & Commonwealth Office Services, Hartley (H), suffers with Asperger’s syndrome. Her symptoms were described as relatively mild so that she was able to maintain friendships but sufficiently severe for her ability to hold down a job to be adversely affected. She was dismissed for incapability following poor reviews of her performance in producing reports.
An employment tribunal (ET) dismissed her disability discrimination claims, one of which was harassment related to disability. The ET had to consider two remarks made to H:
- H was asked by Mr Fleet “Are you not intelligent enough to understand the spreadsheet?” The ET found there was no reason to think that this was connected with her disability as the medical evidence did not suggest any effect on her ability to understand such things.
- Ms Brigden referred to H constantly being rude and that she believed that this was a facet of her personality rather than her disability. The ET decided that this was a straightforward observation expressly distinguishing H’s behaviour from her disability.
The EAT upheld H’s appeal. In considering whether the two remarks were ‘related to’ H’s disability, the ET erred by focusing on the perception of the person who made the remark and not the nature of the remark. The question posed by S.26 (1) of the Equality Act 2010 [in this context] is whether the conduct related to disability. This is a broad test, requiring an evaluation of the evidence in the round.
The correct interpretation of the law is reinforced by paragraph 7.9 of the EHRC Equality Code which says “Unwanted conduct ‘related to’ a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic.”
A person’s knowledge or perception of an employee’s disability is relevant to the question as to whether their conduct relates to disability, but the legislation does not permit treating it as being in any way conclusive. Within the broad meaning of the legislation, a person may, for example, engage in conduct ‘relating to’ disability without knowing that an employee is disabled or make a remark based on an incomplete or incorrect understanding of the disability in question.
The ET’s task was to look at the overall picture, including its own findings, as to the adverse effect of H’s disability and to ask whether the remarks, judged as a whole, related to disability. But in this case, there was no sign in the ET’s reasons that it had done so. The question of harassment would therefore be remitted to the ET.
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This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
