In this case, the EAT held that a claimant cannot bring a claim of harassment based on a disability which he has claimed but had not proved.
Mr Baker was employed by Peninsula Business Services Limited as a lawyer. He said that he was dyslexic, that this was a disability, and that this had ramifications on his ability to perform his job. He claimed to have performed three protected acts in relation to informing his employer about the dyslexia.
Mrs English, the director of legal services at Peninsula (with whom Mr Baker had not discussed his disability) instructed a member of her department to ask an external company to subject Mr Baker to covert surveillance. Mrs English believed that Mr Baker wished to build up a private case load and that, during the time he was being paid by Peninsula, he was either working elsewhere or was simply not carrying out his duties. The surveillance showed that he was spending significant periods of time at his mother's house.
Mr Baker was invited to a disciplinary hearing, and told about the surveillance. He wrote to his line manager, making it clear how upset and disturbed he was by the fact that he had been subject to surveillance, that he was feeling very emotional, could not concentrate, and needed to go on sick leave.
Mr Baker asserted that he was disabled, but this was not accepted by Peninsula. Because of the way in which his claim had been pleaded, while Mr Baker asserted that he had a disability, the tribunal had not been asked to make a finding that he was disabled.
Mr Baker brought claims for disability harassment and victimisation. The tribunal upheld both these claims.
Mr Baker, in his claim for disability harassment, argued that deciding to put, and putting him, under surveillance and later telling him about the surveillance, was unwanted conduct related to the protected characteristic of disability, which had the effect of violating his dignity and/or creating a hostile, degrading, humiliating or offensive work environment. The employment tribunal (without making a finding that Mr Baker was disabled) held that he had suffered disability harassment.
Peninsula appealed to the EAT. Peninsula argued that, while there are circumstances where an individual may bring a discrimination or harassment claim if they do not have a protected characteristic, this does not protect individuals who claim to have a disability, but have not proved it. The EAT agreed with Peninsula, accepting Peninsula's argument that the tort of victimisation is best adapted to providing protection for a person who alleges (whether falsely or not) that he possesses a protected characteristic and that he has suffered a detriment as a result.
The EAT also held that the tribunal had erred when it found that Peninsula had victimised Mr Baker as it had not made the findings of fact which were necessary to support that conclusion.
Also in relation to victimisation, the tribunal had found that Peninsula was liable for the acts of the surveillance company (as Peninsula's agent) in relation to subjecting Mr Baker to surveillance, which Mr Baker claimed was victimisation. On appeal, the EAT held that, while legislation makes a principal liable for anything its agent does within the scope of its agency, it only makes the principal liable for a breach if what the agent does is, itself, a breach of the legislation. As the surveillance company did not know about Mr Baker's protected acts/did not do anything because of his protected acts, it had not committed victimisation. Accordingly, Peninsula could not be liable for the company's victimisation.
What does this mean for employers?
In these circumstances, Mr Baker could not bring a successful claim without proving that he was disabled. However, employers should bear in mind that individuals can, in some circumstances, bring a discrimination or harassment claim where they do not have a protected characteristic. For example:
Where A does not have a protected characteristic but is closely associated with someone who does, and A is harassed in relation to the protected characteristic;
Where B attributes a protected characteristic to A, and subjects A to harassment related to the characteristic that B has attributed to A. In one case, a heterosexual man, who was known by his colleagues to be heterosexual, was subjected to repeated name calling suggesting that he was gay.
An individual is perceived (wrongly) to have a protected characteristic and is subjected to harassment (or other discrimination) because of that characteristic.