The law says that, when deciding whether there has been harassment, tribunals have to take a number of factors into account. In Ahmed v The Cardinal Hume Academies the Employment Appeal Tribunal (EAT) specified that it is only if the tribunal can hold that it was reasonable for the conduct to be regarded as having the proscribed effect that a claim of harassment can succeed.
Mr Ahmed suffered from dyspraxia, a form of coordination disorder and he had difficulty writing for more than a few minutes due to pain in his hands. After being offered a post as a trainee teacher at one of the schools in the academy chain, he had a meeting with the headmaster who commented adversely on the problems he had with writing. Mr Ahmed was then suspended on a form of garden leave while the school considered how to take things forward.
He lodged a grievance and then resigned claiming he had been discriminated against on the basis of his dyspraxia. His grievance was not upheld, nor was his appeal against that decision. He lodged tribunal proceedings claiming discrimination arising from disability, harassment and direct discrimination, among other things.
Dismissing his claims, the tribunal held that, while the use of the term ‘suspension’ was ‘unfortunate and misguided’ it was not harassment to send Mr Ahmed home on his second day in order to give the school the opportunity to decide whether it thought he could cope in the classroom and if so, what adjustments it might need to make.
It also dismissed his claim of direct discrimination on the basis that it could not find any facts showing that he was sent home because of his disability per se, but rather his difficulty with handwriting. As for his claim of discrimination because of “something arising” from his disability, it accepted that his suspension potentially constituted unfavourable treatment, but that it was a proportionate means of achieving a legitimate aim.
Mr Ahmed appealed on the basis that the tribunal had failed to correctly apply the provisions of section 26(4) of the Equality Act with regard to harassment, particularly its failure to take account of his perception of the meetings; and that it had failed to give effect to its own finding that the reason for his suspension was his difficulty with handwriting, i.e. he argued that his claim of direct discrimination should have been upheld.
Section 26(4) states that, in deciding whether the unwanted conduct had the proscribed effect set out in section 26(1)(b), a number of factors have to be taken into account. These include the claimant’s perception, the other circumstances of the case and whether it was reasonable for the conduct to have that effect.
The EAT dismissed his appeal. With regard to Mr Ahmed’s claim that the tribunal had failed to properly take account of his perception, it held that the tribunal had correctly applied the approach set out in Pemberton v Inwood which was that if it was not reasonable for the conduct to be regarded as violating his dignity or creating an adverse environment for him, then the tribunal could not find that it had.
As tribunals have to consider “whether” it was reasonable for the conduct to be regarded as having the proscribed effect. It was only if that question could be answered in the affirmative that a claim of harassment could succeed.
Likewise, it agreed with the tribunal that Mr Ahmed’s direct discrimination claim could not succeed, he had been suspended because of his difficulties with handwriting. He had been treated in this way because of the adverse effect of an impairment or of something arising from disability and not because of the impairment itself.