In the recent case of Habinteg Housing Association Ltd v Holleron [2015]. Holleron, an employee of the housing association, brought a claim for harassment related to sexual orientation which was 12 days out of time. This case was about the value and weight of hearsay evidence presented at the tribunal. While the tribunal can rely on hearsay evidence of a conversation to which the claimant was not a party, it shall not wholly ignore direct evidence from one of the parties to the conversation.

In this case a tenant was interviewed by the association’s investigator; subsequently the tenant informed Holleron that the investigator alleged that Holleron was homosexual and that he was trying to take advantage of the tenant. The tribunal considered it just and equitable to accept the claim despite the expiration of the time limit because H did not become aware of this conversation for 7 weeks. The tribunal found for Holleron on the basis of hearsay evidence, ignoring direct evidence from the investigator that the alleged discriminatory words about the claimant were never spoken. However, the Employment Appeal Tribunal overturned a tribunal's finding.

Under the Equality Act 2010 section 26(1) a person harasses another if he/she engages in unwanted conduct related to a relevant protected characteristic such as age, disability, race, sex, sexual orientation and the conduct has the purpose of violating another employee’s dignity or creating an intimidating, hostile environment for him/her.

This is the first case concerning "harassment by hearsay", where the claimant did not hear the harassing words allegedly spoken by the harasser, but only heard them reported to her by a third party. Indeed, the President of the EAT confirmed that this could constitute harassment.

The case is also a reminder to claimants seeking an extension of time that they must give reasons (backed up by evidence such as a witness statement or other documents) as to why the claim could not be submitted within the time limit. The fact that the claimant only found out about the alleged harassment with about seven weeks of the time limit remaining did not of itself amount to a reason for extending time; the claimant would have to produce evidence and argument as to why that time was insufficient.

Employers should be aware that despite the fact that they are not directly part to the harassment, they might be held to be liable for their employees’ behaviour. Employers are responsible for preventing bullying and harassment. It is therefore advisable that they should have policies in place to avoid this.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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