In the case of Baker v. Peninsula Business Service Limited  UKEAT/0241/16, the EAT confirmed that an individual cannot succeed in a claim for disability harassment, unless they first prove that they have that protected characteristic.
Mr Baker was employed by Peninsula Business Service Limited (Peninsula) to provide legal advice and representation at employment tribunal hearings. From time to time, he handled cases privately, with Peninsula's prior permission. In 2014, Mr Baker told his managers that he was dyslexic, that as a result it took him longer than normal to do certain things (and so he might not be able to cover a specific case), and that he had medical evidence to show his dyslexia was a learning disability. This was supported by occupational health advice obtained by Peninsula, although Peninsula did not accept that Mr Baker was disabled.
Peninsula's director of legal services suspected that Mr Baker was "moonlighting", not working for Peninsula when he should have been, and/or attempting to set up in business privately. She ordered covert surveillance of Mr Baker to take place over a five-day period. The surveillance did not show that Mr Baker had been moonlighting, but did show that he had been spending time at his mother's house when he should have been performing work for Peninsula.
Peninsula invited Mr Baker to a disciplinary hearing, informed him that they had undertaken covert surveillance and provided him with a copy of the surveillance report. Mr Baker stated that knowledge of the surveillance had given him, amongst other things, sleepless nights and a sense of paranoia which were preventing him from concentrating on his duties, as a result of which he needed to go on sick leave. Mr Baker brought claims for disability harassment and victimisation based on the surveillance (which he said arose as a result of three protected acts). This included a claim that he had been victimised by the surveillance company, and that Peninsula was liable for this. Although Peninsula had not admitted disability, the tribunal did not make a finding on the issue. However, the tribunal found for Mr Baker in relation to both the harassment and victimisation complaints (including the claim for victimisation based on the actions of the surveillance company).
Peninsula appealed on the grounds that a claim for harassment could only succeed if Mr Baker was in fact found to be a disabled person for the purposes of the Equality Act 2010 (the Act). It was not enough that Mr Baker had asserted that he was a disabled person. Peninsula acknowledged that there were exceptions to the requirement to prove disability in order to bring a discrimination claim, but was of the opinion that no such exceptions applied here.
The EAT allowed the appeal. In respect to the harassment claim it commented that if the Act applied to individuals simply on the basis that they believed themselves to be disabled, this would allow an individual to claim harassment on the grounds of a false assertion, made in bad faith, that they have a disability. This could not have been intended and is contrary to the express wording of the Act.
The EAT also found that the tribunal had erred in allowing Mr Baker's victimisation claim, as it had not made the findings of fact necessary to properly reach the conclusion that he had been victimised. With regards to the complaint about the surveillance company's actions in putting Mr Baker under surveillance, the EAT found that Peninsula could only be held liable for the acts of the surveillance company, as its agent, if the agent had itself been in breach of the Act. On the facts the surveillance company knew nothing about the protected acts alleged by Mr Baker, and so it could not have subjected Mr Baker to surveillance because of those acts and accordingly could not have committed victimisation. As the surveillance company had not committed an act of victimisation, it followed that Peninsula could not be liable for such an act.
What is the practical impact of this for employers?
This case highlights the importance of the requirement to establish disability in order to bring a successful disability discrimination claim. The EAT's findings seem obvious on a literal interpretation of the Act (and, as Mr Baker was apparently an employment law expert himself, it is surprising that he pleaded the claims in the way that he did). However, employers should remember that case law has established certain circumstances where individuals can bring a claim for discrimination or harassment where they do not themselves have a protected characteristic. This includes, for example, where an individual is subjected to conduct related to a protected characteristic that they are wrongly perceived to have; and where an individual closely associated with someone with a protected characteristic suffers harassment related to that protected characteristic (even if they do not share it). Employers should be wary of this when dealing with employees to whom such circumstances might apply.