Female manager's shoulder massage of male team member was not sexual harassment

EAT upholds tribunal's decision that conduct was unwanted but not related to the claimant's sex

A recent case has provided an interesting review of the central tenets of harassment claims, focusing particularly on what the claimant has to show in order to shift the burden of proof onto the respondent to show a non-discriminatory reason for the conduct. It is also an interesting example of a case where conduct was found not to be sexual in nature, or related to sex.

The law

Under the Equality Act 2010 (EqA’10) a person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of either violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

A will also harass B if A engages in unwanted conduct of a sexual nature and the conduct has the effect as set out above.

If there are facts from which the court could decide, in the absence of any other explanation, that discrimination occurred (a 'prima facie case'), the burden of proof shifts to the respondent to prove that discrimination did not occur. 

[Emphasis added]

Case details: Raj v Capita Business Services Ltd and anor

Mr Raj was employed by CBS as a customer service agent and was dismissed in August 2017. He brought claims including sexual harassment, alleging that, on several occasions, his female team leader stood behind him whilst he was sat as his desk and gave him a massage during which she felt his shoulders, neck and back. Mr Raj said this contact was unwanted conduct of either a sexual nature or related to sex.

The Tribunal found that the conduct was unwanted and that it had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for Mr Raj. However, the Tribunal rejected his claim that the conduct was sexual in nature because, amongst other things, the Tribunal found that the purpose of the contact, if misguided, was to encourage Mr Raj in the performance of his job.

Crucially, the Tribunal found that the conduct was not sexual in nature or related to sex as there was no evidence that the manager’s conduct towards Mr Raj was ‘related to’ his protected characteristic of sex.

Appeal and EAT decision

Mr Raj appealed, arguing that the Tribunal had failed to apply the burden of proof test properly. Mr Raj argued that the Tribunal had found facts which were enough to establish a prima facie case: the Tribunal found the conduct was unwanted and had rejected the manager’s assertion that she had not massaged him and in fact only ‘tapped him on the shoulder once’.  In particular, Mr Raj made reference to the case of Birmingham City Council and anor v Millwood where the EAT held an inference of discrimination could arise from a finding that the respondent had given an untrue account of events.

The EAT did not agree that these findings were enough to shift the burden of proof. It noted that in Millwood the claimant had established less favourable treatment in comparison to someone who did not have her protected characteristic, so there were obvious inferences a court could take from untruthful evidence from a respondent in this context. This was not the case for Mr Raj because he had not been found to be less favourably treated than someone of a different sex.

Comment

This case will be of keen interest to employment lawyers who represent claimants, serving as a reminder that a claimant needs to be very clear about how they meet all the requirements of the relevant section of EqA’10 in order to be successful with a harassment claim, and how they meet the requirement of the burden of proof under the EqA’10.

In addition, the finding will be of interest to readers for the Tribunal's examination of Mr Raj's manager's actions and why they did not amount to conduct of a sexual nature or conduct related to sex. The Tribunal considered a number of factors, including what parts of Mr Raj's body had been touched, the layout of the office and what the manager said during the interactions complained of. It is clear in this case that the Tribunal undertook a careful consideration of the acts complained of in context to decide that the conduct was not of a sexual nature or related to sex.  Significantly, just because this interaction was between colleagues of different sexes did not of itself lead the Tribunal to infer that it was of a sexual nature or related to sex.

It will also be interesting for employers to note that, even if the evidence of their witnesses about the facts surrounding the conduct are not believed by a Tribunal, this does not automatically mean the Tribunal will find that a rebuttable case has been established.