Peninsula Business Services Limited v Baker is an interesting case in its exploration of the interface between perceived, attributed, associative and alleged discrimination and how they fit into the framework of the Equality Act.
Mr Baker was not (or at least was not found to be) disabled. He had, however, told the Respondent that he had dyslexia. The Respondent also received a psychologist’s opinion that C was dyslexic. Nevertheless, although the Tribunal said that there would have been ample evidence upon which to decide that C was disabled, it had not in fact been asked to determine that question.
The Tribunal’s decision was that C had been subjected to harassment because R had engaged “in unwanted conduct related to a protected characteristic” within the meaning of s. 26(1) of the Equality Act 2010.
What was C’s real argument?
At first sight, C’s case can be seen to be something of a hybrid of a harassment claim and a victimisation claim. He seemed to be saying that the unwanted conduct was caused by his assertion that he was disabled. Importantly, though, that was coupled with facts from which the Tribunal might have concluded that R believed him to be disabled, or ought to have understood him to be disabled.
As a victimisation claim, this is easy enough to understand, so long as the assertion of disability can be interpreted as “doing any other thing for the purposes of or in connection with [the Act]”: that is not problematic.
How can Claimants in Mr Baker’s position approach the question?
The EAT sets out at paragraph 46 the circumstances in which a Claimant can succeed in a discrimination or harassment claim without in fact having a protected characteristic:
- Association with someone who has the protected characteristic: Coleman v Attridge  IRLR 722;
- Where C does not have a protected characteristic but one is attributed to him by R: English v Thomas Sanderson Blinds Ltd  IRLR 206 (the case in which a heterosexual man, known to be heterosexual, was tormented as if he were gay);
- Where C is perceived wrongly to have a protected characteristic.
Section 26 (harassment) does not, however, protect someone simply because they assert a protected characteristic: that sort of Claimant would in all likelihood be protected by section 27 (victimisation). But how might Mr Baker have made a harassment claim from his case, even when he had not been found to be disabled?
It seems strange that there could be a harassment claim (1) where there was knowledge that a person did not have a protected characteristic but he was treated as if he did and (2) where there was an incorrect perception that he did, but no harassment where R had been told that C had a condition which it ought to have known was a disability.
The difficulty no doubt arises from the fact that the protected characteristic of disability is not what might be termed a free-standing question of fact (like race, for example), but rather one determined according to a specific legal test (in section 6). I may know that my colleague is black and I therefore know of his protected characteristic. I may also know that my colleague has dyslexia, but do I necessarily know that he is “covered” by section 6? What if I can see that his dyslexia has a long term and substantial adverse affect on his ability to read, for example? What if I know that he has cancer, which is a deemed disability (albeit I do not know that it is a deemed disability?) In J v DLA Piper  IRLR 936, Underhill P (as then) gave some obiter consideration to the question (see paragraph 48 of Baker), taking the view that ‘what [a Respondent] perceives may not necessarily be a disability unless the disability is objectively obvious, such as blindness.’
The judgment does not sit easily with the EHRC Employment Code which gives examples of harassment in circumstances where the Claimant does not have the relevant protected characteristic and is not perceived (rightly or wrongly) to have it. For example, it envisages that a white worker who is offended by a black colleague being subjected to racially abusive language can bring a racial harassment claim – (para 7.10).
Practically speaking, it might be productive, on the back of Baker, to argue:
- Squarely the claim of perception (rather than focussing on the allegation of disability). This would require alleging in the claim form facts that show that R was aware of the relevant parts of the legal test for disability; or
- That the case comes within the ambit of the cases referred to in the EHRC employment code. This is likely to be a stronger argument in circumstances where the alleged unwanted conduct is very clearly related to the protected characteristic. It is difficult to see why, as a matter of principle, a non-disabled (at least as a matter of the Tribunal’s findings) person could not be harassed when his colleagues refer to a disabled person (a specific or hypothetical one) as “mental” or “spastic” or something equally offensive. Certainly it is hard to see why disability should be treated differently from other protected characteristics.