Mr Ahmed was a newly-qualified teacher.  He also has dyspraxia, which affects co-ordination and causes him to suffer pain while writing by hand, so that he can only do so for a few minutes at a time. At an initial meeting with the school’s headmaster in September 2016, the headmaster expressed surprise and (by his own testimony) significant alarm about how he thought Mr Ahmed would cope with the role if he was unable to write.  Mr Ahmed later claimed that he perceived these remarks to be discriminatory, although at the time he had described the conversation as civil.

After the meeting, the school took the decision to suspend Mr Ahmed to allow his situation to be considered, citing a need to act in the interests both of Mr Ahmed and of his potential pupils.  Mr Ahmed raised a grievance in response to his suspension, and, later the same day, resigned, stating that he considered that he had been harassed by the questions he had been asked by the headmaster, and that he regarded himself as having been constructively dismissed.

The Employment Tribunal rejected his claims, and Mr Ahmed appealed to the Employment Appeal Tribunal.  In particular, he claimed that the Employment Tribunal had erred in its assessment of harassment. The Equality Act requires both a subjective assessment (i.e. of Mr Ahmed’s perception of events) and an objective assessment about whether Mr Ahmed’s perception was reasonable.  Mr Ahmed felt that the Tribunal had placed too much weight on the latter assessment.

The EAT disagreed.  Citing the previous case of Pemberton v Inwood, the EAT held that the initial assessment should be whether a claimant’s response to perceived harassment was reasonable.  If the response was not held to be reasonable (as was the case on these facts), then the original Tribunal was correct in its approach that the subjective factors do not need to be considered.

Comment

This case is helpful guidance that an employee will not be able to benefit from the legal protection of the law relating to harassment unless their reaction is a reasonable one.  Interestingly, the failed discrimination claim may have proceeded very differently if Mr Ahmed had based the claim upon “discrimination arising from disability” rather than “direct discrimination”.  However, he did not make out this claim in his pleadings, and so this was not assessed by the Tribunal or the EAT.

Ahmed v The Cardinal Hume Academies [2019] UKEAT/0196/18/RN

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