Mr Flood For the v Mr Waite — 2021

The claimant was a job applicant, not an employee, and the case arose from his unsuccessful application to become a police constable. The tribunal accepted that some of his communications with the respondent were caused or contributed to by his disability, but held that the respondent did not have actual or constructive knowledge that he was disabled at the material time. It relied on the application form, which asked about mental ill-health and was answered negatively, and on the occupational health process, which the tribunal found was a reasonable way for the respondent to identify relevant issues. On that basis the claims under section 13 and section 15 of the Equality Act 2010 failed.

The tribunal extended time for some of the harassment complaints on a just and equitable basis because the claimant only received the relevant emails later via a subject access request. It nevertheless held that there was no environment for the purposes of section 26 because, when he received the emails, his job applicant relationship with the respondent had ended and there was no ongoing relationship. Applying section 108 and section 40 Equality Act 2010, the tribunal treated former job applicants as capable of protection in principle, but found the degree of separation in this case meant the harassment claims still failed.

For the disability-based harassment complaints, the tribunal considered Ms Saunders' emails of 16 May, 17 May and 22 June 2017. It found the first two emails were not sufficiently strong to amount to violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. It found the reference to the claimant having 'flipped out' was not related to disability. The 22 June email, which referred to mental health issues and said 'we just need to get rid of him', was stronger wording, but in context the tribunal did not consider it reasonable for the claimant to perceive it as harassment. Even taken together, the emails did not meet the section 26 threshold.

For the sex-based harassment complaints, the tribunal accepted that the emails describing the claimant as a 'gorgeous hunk' and a 'hunk' related to sex. It held, however, that the photographs were unremarkable, the only sexual language was the use of those words, and the comments may have offended the claimant but did not violate his dignity. The tribunal therefore dismissed the harassment claims in their entirety and made no monetary award.