Comments made by an interviewee in the course of an internal investigation, which are related to a protected characteristic such as disability but which are honest opinions relevant to the matters under investigation, will not amount to harassment simply because the subject of the comments is offended by them. The claimant will also have to establish that it was reasonable to be offended and the investigatory context of the comments will be relevant to this - and make it less likely that offence-taking was reasonable.
In Greasley-Adams v Royal Mail Group, the employer had investigated and upheld bullying complaints made against the claimant (who has Asperger's Syndrome) by two colleagues. As a result of reading the investigation report the claimant became aware of negative comments the colleagues were making about him related to his disability (including descriptions of him as "nosey", "quite demanding" and "difficult"). The claimant argued that the comments amounted to unlawful harassment in that they had the effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. In determining whether conduct has this effect, the law expressly requires the claimant's perception, and whether it is reasonable for the conduct to have that effect, to be taken into account.
The EAT agreed with the tribunal that the investigatory context of the comments was relevant. The tribunal had not erred in noting that it was inevitable in the circumstances of an investigation into his alleged bullying that things would emerge that the claimant did not like; provided interviewees answered truthfully in accordance with their own view of the matters under investigation, the fact that matters emerging could be 'unwanted' and cause offence should not be allowed to constrain the investigation. Although the comments were unwanted and related to disability, and had caused the claimant offence, on the facts it was not reasonable for the claimant to be offended. This is not to say that a claimant can never reasonably take offence at comments made in the context of an investigation, only that the context is a highly relevant consideration in determining reasonableness.
The EAT also made clear that an individual cannot claim to have suffered harassment while unaware of unwanted conduct. It rejected the argument that 'dignity', meaning the esteem in which an individual is held by others, could be violated without the claimant's direct knowledge. The statutory requirement to take into account the claimant's perception makes clear that the claimant must perceive that they have suffered the required effect, and perception requires awareness. In this case the claimant had only become aware of the negative comments when reading the investigatory report, and therefore could not claim to have suffered harassment earlier.
