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Disability harassment in the workplace | Is ignorance an excuse?
Written by Lesley Rennie on 24 February 2023
Under the Equality Act 2010, employers in the UK have a number of duties towards employees who have a disability with the meaning of the Act. That is, a physical or mental impairment that has a substantial and long-term adverse impact on their ability to carry out normal day-to-day activities.
These include a duty to make reasonable adjustments, not to discriminate, and to take reasonable steps to prevent disabled employees from being harassed by their colleagues or managers.
The latter, harassment, refers to unwanted or unwelcome behaviour related to a person’s disability that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It can include behaviour such as name-calling, offensive jokes, mocking or imitating a person’s disability, physical or verbal abuse, or exclusion from social activities or work-related opportunities.
But what happens if a manager accused of disability-related harassment was unaware of the employee’s disability at the time the alleged harassment occurred? Will pleading ignorance avoid liability for a successful harassment claim?
The recent case of Hagi v Royal Mail Group Limited addressed this point and has confirmed that an employee’s claim for harassment can still succeed.
Hagi v Royal Mail Group
The claimant in this case, Ms Hagi, worked as a postal worker for Royal Mail. Ms Hagi had schizophrenia, for which she took strong anti-psychotic medication, as well as bowel and urinary conditions. As such, she was considered disabled under the Act.
On her pre-employment health questionnaire, Ms Hagi indicated that she had tinnitus, anxiety, stress or depression that no longer required treatment, and anaemia for which she was taking iron tablets. She also provided information about surgery she had had for endometriosis involving the bowel. She did not tick the box to say she was disabled; however, her schizophrenia had not been diagnosed at that point.
Ms Hagi brought various claims against her employer, including a complaint of disability-related harassment arising from an incident involving her colleague, Mr Milne, a Work Area Manager at the same mail centre, though not Ms Hagi’s direct supervisor. On 10 December 2022, Mr Milne had asked Ms Hagi to remove a bag from her workspace in line with the company’s policy which prohibited personal items in the work area. He had “no idea” about her disability, or that the bag in question contained medical supplies.
Ms Hagi refused – she had already informed her line manager that she wanted to have the bag with her for medical reasons and, on his instruction, had put it out of the way in a Perspex tray. She was also not the only one to bring a personal bag into work; video and photo evidence later presented by Ms Hagi at Tribunal would show that other colleagues, including members of Mr Milne’s team, did the same.
During the incident, Mr Milne had moved towards the bag as if to open it or to move it himself. According to his account, Ms Hagi had then become “aggressive”, accused him of picking on her, and shoved him. At Tribunal, Ms Hagi admitted that she got “angry” but denied having pushed Mr Milne, saying she “simply tried to block his path with her arm”.
Following the altercation, Mr Milne was told by a witness to the incident that Ms Hagi had the bag for medical reasons.
Ms Hagi submitted a grievance of bullying and harassment under Royal Mail’s Stop Bullying and Harassment Policy. In it, she argued that Mr Milne should have spoken to her manager before approaching her directly and accused him of deliberately provoking her. She also made reference to an earlier occasion where Mr Milne had accused her of not being careful with equipment.
Her complaint was rejected following investigation by a shift manager, who concluded that Mr Milne had the right to inquire directly with Ms Hagi about the bag without consulting her manager first but accepted that he could have “shown more dignity and respect”. It was suggested that the two engage in mediation to repair the relationship.
Subsequently, Ms Hagi brought several claims before the Employment Tribunal, relating to various incidents dating back to 2019. In regard to the incident involving Mr Milne, the Tribunal upheld her claim for harassment relating to her disability.
It found that although Mr Milne, as a manager, was entitled to approach Ms Hagi to ask her about the bag, his conduct in stepping towards the bag was “insensitive” in the circumstances and amounted to “unwanted conduct which had the effect of violating Hagi’s dignity”.
Furthermore, unlike on previous occasions when she was questioned, Ms Hagi had by this point presented medical documentation supporting her need for the bag and requested specific permission to keep it where it was from her on-shift manager.
Ultimately, the fact that Mr Milne didn’t know about Ms Hagi’s disability was not enough to prevent a finding of harassment. “We do not consider this to prohibit his conduct from being disability-related because Hagi’s possession of the bag and what was inside of it were both related to her impairment,” the Tribunal said. Mr Milne’s knowledge, or lack thereof, was irrelevant; what mattered was that there was unwanted conduct related to disability which had the purpose or effect set out in the Act.
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Lessons for employers
For employers, this case confirms that a successful harassment claim doesn’t require any knowledge of the protected characteristic on the part of the harasser – a claim will succeed if the statutory definition of harassment enshrined in the Equality Act is met.
In other words, if the conduct is unwanted, related to a protected characteristic, and has the purpose or effect of violating the individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them, harassment will be found to have occurred.
Here, the Tribunal was satisfied that Mr Milne’s conduct was unquestionably related to Ms Hagi’s disability and violated her dignity.
Actual or constructive knowledge of a disability is required for ‘direct discrimination’, ‘discrimination arising from disability’, and ‘failure to make reasonable adjustments’ claims. In these types of claims, where an employer does not know and could not reasonably be expected to know of the employee’s disability, no liability will arise.
In Ms Hagi’s case, there wasn’t a complete absence of knowledge, as some managers were aware of the claimant’s disability but had failed to communicate or act upon this.
Ultimately, where an employer suspects that an employee may have a disability, they should investigate it to understand how it affects them at work, then explore and implement reasonable adjustments. Once such adjustments have been put in place, it’s crucial that they are communicated to the relevant managers interacting with the employee to ensure that they are maintained.
Had this been done in this case, the incident, and the finding of harassment, could well have been avoided.
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