Disability harassment: Ignorance does not avoid liability
Register for free to read more of the latest local news. It's easy and will only take a moment.
Under the Equality Act 2010, UK employers have a number of duties towards employees who have a disability – 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.
Duties include making reasonable adjustments, not discriminating, and taking reasonable steps to prevent disabled employees from being harassed by their colleagues or managers.
In this context, harassment refers to unwelcome conduct related to an individual’s disability that violates their dignity, creates a hostile or degrading environment, or is offensive, such as name-calling, jokes, mockery, 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? Does pleading ignorance avoid liability for a successful harassment claim?
The case of Hagi v Royal Mail Group Limited clarified that even if a manager accused of disability-related harassment was unaware of the employee’s disability, a claim for harassment can still succeed.
In this case, Ms Hagi, a postal worker with schizophrenia and other conditions, brought a claim of disability-related harassment against Royal Mail after her colleague asked her to remove a bag containing medical supplies from her workspace. The tribunal heard that although the colleague, Mr Milne, had the legal right to speak with Ms Hagi about the bag since he was a manager, his behaviour in doing so was inappropriate and amounted to ‘unwanted conduct’, which had the effect of ‘violating her dignity’.
The judge said that although Mr Milne wasn’t aware of Hagi’s condition, or the fact that the bag contained medical supplies relating to her disability, he didn’t consider this preventing his conduct being disability related.
This case confirms that a successful harassment claim doesn’t require any knowledge of the protected characteristic on the part of the harasser. 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.
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 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 – and communicate to relevant managers.
Had this been done in this case, the incident, and outcome, could well have been avoided.
By Gerard O'Hare – head of team and solicitor at WorkNest
