Was covert surveillance harassment?
In a recent case decided by the Employment Appeal Tribunal an employer’s behaviour in carrying out covert surveillance on an employee was considered in the context of the employee’s assertion that the reason for the surveillance was his disability.
Section 6 of the Equality Act 2010 states:
(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.
(2) A reference to a disabled person is a reference to a person who has a disability.
(3) In relation to the protected characteristic of disability—
(a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability;
(b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.
section 26 of the Equality Act 2010 provides that A harasses B if A engages in conduct “related to a relevant protected characteristic”, and the conduct has the effect violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Section 27 provides, so far as is material, that A victimises B if A subjects B to a detriment because A does a protected act. Section 27(1) lists four types of protected act.
Mr Baker was employed by Peninsula as a Tribunal Advocate undertaking cases for them in the Employment Tribunal. Mr Baker informed a manager that he had dyslexia and asserted that he had a disability. He also requested reasonable adjustments in discussions and correspondence with managers.
Peninsula’s Director of Legal Services, decided to put Mr Baker under covert surveillance, which was provided by a third-party company, in order to establish if Mr Baker was devoting all his time and attention to his work. For a short period in September 2014 unknown to him Mr Baker was under surveillance and the results reported back to Peninsula.
Mr Baker later found out about the surveillance during a disciplinary process, although the surveillance did not show any wrongdoing by Mr Baker.
Mr Baker claimed that he should have protection from harassment and victimisation as he had asserted that he had a disability, rather than showing that he had an actual disability.
The Employment Tribunal agreed with Mr Baker and decided that he had been the victim of harassment and victimisation related to disability.
Peninsula appealed against the decision on the basis that there was no protection under the Equality Act 2010 for someone who had merely asserted a disability but was not a disabled person for the purposes of Section 6 of the Equality Act.
The Employment Appeal Tribunal overturned the Employment Tribunal decision as Mr Baker had not shown he was disabled or that he fell into another recognised category that has protection from harassment under the Equality Act 2010.
In respect of the claim for victimisation the Appeal Tribunal found that the Tribunal had not applied the right test to this case and Mr Baker had not been victimised.
Mr Baker could not claim harassment or victimisation on the assertion he was disabled without showing he was a disabled person for the purposes of the Equality Act 2010.
Points to note
This case is an unusual one in that the employee, Mr Baker did not produce evidence or make his claim on the basis that he was a disabled person but rather that he was asserting he was disabled. Because he did not show that he was in fact disabled he could not succeed with a claim for harassment and victimisation.
It is also unusual as the Employer placed the employee under covert surveillance in the hope of catching him in some wrongdoing. The issue of the surveillance in itself was not really considered by the Employment Appeal Tribunal; however I can certainly foresee a potential claim for constructive unfair dismissal where an employer uses covert surveillance to spy on an employee.
Action to take
1) If you are considering taking any action in relation to a disabled or potentially disabled employee, you should take care to ensure that the reason is not because of their disability;
2) If you are considering covert surveillance of your staff I recommend that you seek advice before doing so;
3) Ensure any staff making decisions about disciplinary issues and investigations have training on equality and diversity considerations.
Employment Appeal Tribunal – Peninsula Business Services v Baker
You can read the full judgement here