Case update (1): Sex Discrimination – When is harassment sexual?

Summary:  Is massaging a work colleague’s shoulders harassment? If so, is it sexual harassment?

Yes, it’s harassment, but not sexual harassment, says the EAT in Raj v Capita Business Services Ltd and another (available here).

Background:  The Equality Act 2010 provides that sexual harassment occurs where both:

• “A engages in unwanted conduct of a sexual nature or related to their gender; and
• that conduct has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”

In deciding whether conduct has this effect, a Tribunal must take into account the perception of person B, the other circumstances of the case and also whether it is reasonable for the conduct to have that effect on B.

If an employee can show sufficient evidence to meet this two-stage test, the burden of proof then switches to the employer to provide a reasonable explanation for the conduct.

Facts:  Mr Raj, the employee, was employed by Capita Business Services as a customer service agent. His employment was terminated in August 2017 for capability, following a failed probationary period.

Mr Raj brought several Tribunal claims including for sexual harassment, or harassment related to sex, in relation to actions by his team leader, Ms Ward.

Tribunal

During the Tribunal hearing, it was found that there had been physical contact between Ms Ward and Mr Raj on at least two occasions, and that Mr Raj’s colleagues had witnessed this contact in the office. It listened to evidence that Ms Ward had, on occasions, massaged Mr Raj’s shoulders and that the massages were long enough to make Mr Raj feel uncomfortable.

Despite this, the Tribunal rejected his sexual harassment claim. Although the Tribunal found that Mr Raj had proven physical contact had taken place, and that this had been unwanted contact, and that this had the effect of creating a hostile and offensive environment for him, the Tribunal said that this was not ‘conduct of a sexual nature’ or linked to his sex.

In particular, the Tribunal found that it was not linked to his sex because Ms Ward had not massaged anyone else, male or female, and it was isolated conduct. The Tribunal also rejected Mr Raj’s claim that Ms Ward had run her hands up and down his back, and it concluded that the massage was not consistent with sexual behaviour.

Instead, the Tribunal found the purpose of the conduct was misguided encouragement: the context was a standing manager over a sitting team member and the contact was with a ‘gender neutral’ part of the body in an open plan office and were accompanied by phrases such as “well done“.  Although the conduct was unwise and uncomfortable, it did not constitute harassment.

The Tribunal also noted: “the context includes the whole chronology of attendance and latterly performance difficulties, […], the need to encourage performance, and indeed baseless allegations of race discrimination, indicative of a Claimant who would see things that are not there.”

The Tribunal’s findings meant that Mr Raj had not met the two stage test and was unsuccessful in his sexual harassment claim.  This meant that there was no burden of proof on the employer to provide a reasonable explanation for the conduct.

Appeal

Mr Raj appealed, arguing that the Tribunal had made a mistake. If the conduct was unwanted and created a hostile environment – as defined in the Equality Act 2010, surely this is ‘prima facie‘ sexual harassment and the burden of proof shifts to the employer?

The Employment Appeal Tribunal upheld the Tribunal’s decision. The Tribunal had made detailed findings about the context of the conduct. It was entitled to find that whilst the conduct was unwanted it was not of a sexual nature or related to Mr Raj’s gender.

The EAT commented that while the Tribunal could have been clearer in how it determined the issue, it had still correctly approached the question of whether Mr Raj had shown Ms Ward’s massages were either of a sexual nature or related to his sex. Mr Raj had not identified anything to show that either were the case.

Implications: 

This is a good reminder that even if an employee’s conduct is unwanted and creates a hostile environment, they have not necessarily committed harassment, whether sexual or otherwise, under the Equality Act 2010.  The unwanted conduct also needs to be linked to a protected characteristic, i.e. age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation.

Nevertheless, it does seem a lucky decision for the employer and perhaps a reflection of the fact that the employee also brought numerous other weak claims at the same time.  It would be interesting to know whether the Tribunal, in this #MeToo era, would have defined the shoulders as a ‘gender neutral area’, and therefore not linked to the individual’s sex, if it had been a senior male manager massaging a more junior female’s shoulder.  We suspect not!

Even if this was not sexual harassment under the Equality Act, it was still of course unwanted and unwise behaviour.  All employees should continue to avoid potentially unwanted physical contact, including impromptu massaging, regardless of the reason.  This goes for female managers too!