The EAT has held that there can be no claim for harassment based on a disability if the disability is asserted, but not proven.
In a harassment claim, it is the protected characteristic which causes the harasser to act. Where the disability has not been proven and not accepted by the employer, the EAT held that it would be problematic to conclude that the unwanted conduct related to the disability. The difficulty flows from the fact that whether someone has a disability for the purposes of the Equality Act 2010 is a legal test based on various factors.
Interestingly, even if the disability was proven, the EAT stated that informing an individual of the surveillance as part of the disciplinary process would not amount to harassment, as concealing that the employer had conducted surveillance would go against the requirements for fairness and best practice set out in the Acas Code.
Why this matters? This is a positive decision for employers, although it leads to an odd conclusion - an individual is protected from harassment if they are attributed with a protected characteristic (even if they do not have it) or if they are perceived (wrongly) to have a protected characteristic, but are not protected in circumstances where they allege a disability but haven’t proved that their condition satisfies the strict legal definition for a disability.