Non-verbal harassment and discrimination: what employers need to know

A landmark employment tribunal ruling has expanded the definition of harassment and discrimination at work to include non-verbal expressions. The case of Mr Robert Watson v Roke Manor Research Limited found that repeated sighing can amount to harassment when directed at an employee with a disability.

What does this case mean for employers moving forwards? Steph Marsh, Head of Employment, explores.

Robert Watson v Roke Manor Research Limited

Robert Watson joined Roke Manor Research Limited as a Software Engineer in 2020. In 2022, Mr Watson was given an ADHD diagnosis and took four days off of work to adjust to his medication.

In the weeks that followed, his Project Manager DT, criticised Mr Watson for his time keeping skills and trouble focusing. DT began to express his frustration non-verbally with audible sighs and exhales directed at him. DT also told him he was becoming a “net detriment” and made jokes about his disability.

Overall, this created a negative working environment for Mr Watson who experienced significant anxiety and stress. Mr Watson went on sick leave again in 2023 and sued the company on the grounds that the behaviour he experienced had a detrimental impact on his mental health, amounted to discrimination and harassment related to his disability and that the company had failed to make reasonable adjustments for him.

The tribunal agreed, finding that this behaviour, no matter how subtle, could be seen as discriminatory when pointedly directed at a disabled employee. Judge Rayner, who heard the case, noted that had the company taken steps to identify the required adjustments for Mr Watson’s ADHD and provided his Project Manager with the necessary support, that this discrimination could have been avoided.

Insights for employers

This ruling serves as a strong reminder to employers that harassment doesn’t have to be overt, physical or verbal. It can consist of seemingly passive or ambiguous behaviours, particularly when they are repeated and targeted. For employees with disabilities or other protected characteristics, the impact of being on the receiving end of this behaviour may be amplified. 

Under the Equality Act 2010, harassment is defined as any unwanted conduct related to a protected characteristic, such as disability, that has the effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This landmark case has widened the scope of harassment to include non-verbal conduct such as sighing, facial expressions or dismissive gestures. This is particularly so where this behaviour causes or contributes to stress or anxiety for the individual concerned.

Make reasonable adjustments

Employers should ensure they create a company culture and an environment where team members feel comfortable asking for reasonable adjustments. It should also be implemented and not just enacted on paper.

Mr Watson disclosed his diagnosis to his employer and immediate adjustments should have been made for him and his manager. Once an employer is aware of a disability, they have a legal duty to make adjustments to accommodate the employee. Delays, inaction or a lack of genuine engagement with this process can put them at risk of legal action.

Employers should approach requests for adjustments with care, flexibility and empathy rather than defensiveness or minimal effort. Should a dispute arise, having clear records of any adjustments considered, support offered or concerns raised can help demonstrate that the employer acted reasonably and lawfully.

Training managers

Action appropriate training and support for managers to maintain professionalism and emotional control under periods of high pressure. What may seem trivial to one person, may have a significant impact on another. Regular training on unconscious bias, inclusive behaviour and managing diverse teams is no longer optional but rather essential risk management.

Overall, employers need to be prepared and employees need to feel safe to raise concerns before situations escalate. A robust, confidential grievance procedure and a culture that listens without judgement can prevent issues turning into legal disputes. Implementing regular one-to-ones, team check-ins and mental health support can all contribute to building a more supportive company culture.

Avoiding harassment and discrimination

The Watson case is a reminder that the culture of a team is as important as its performance metrics. In a legal landscape where employee wellbeing and inclusion are firmly in the spotlight, employers must be prepared.

If you need support with employment policy, Coodes’ Employment team is here to help. Our approach is to promote and support good HR practice while providing proactive advice to resolve any workplace issues.

For assistance with all employment and employee relations, including absence management, disciplinary issues, complaints and defending Employment Tribunal claims, get in touch with Steph Marsh by calling 01579 324017 or emailing steph.marsh@coodes.co.uk.