Harassment claim fails as Employment Tribunal finds massages were not sexual
23 January 2020
The outcome of a recent Employment Appeal Tribunal case, Raj v Capita Business Services, may be viewed as quite surprising to many, on the facts that were presented. Here, despite there being a complaint of repeated shoulder massaging in an office environment, by a manager to their subordinate, the actions were not found to amount to sexual harassment.
What is sexual harassment?
Section 26 of the Equality Act 2010 provides that harassment occurs where:
A engages in unwanted conduct of a sexual nature, or related to their sex, 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 B, the other circumstances of the case, and whether it is reasonable for the conduct to have that effect.
The case background
The complaint by Mr Raj was that he had made it known to his female manager, that he did not want her to massage his shoulders in the workplace. There was no personal relationship between them, and on a number of occasions, she had touched his shoulders in a massaging type of way. He considered that the conduct was either of a sexual nature or was related to his sex.
The Employment Appeal Tribunal found that although the physical contact was unwanted and Mr Raj had found it offensive, it was not related to his sex or of a sexual nature. The Employment Tribunal found that on the specific facts, the purpose of the conduct was ‘misguided encouragement’ and that the ‘contact was with a gender-neutral part of the body in an open plan office’.
The Tribunal acknowledged that the conduct was ‘unwise and uncomfortable’ but that looking at the context of the situation, they felt there was no evidence of sex or sexual harassment. The context was that the employee, Mr Raj, had previously had issues with his attendance and performance. His manager was also aware that he suffered with back issues, and the argument from his manager was that her conduct was meant to encourage his positive behaviour, as the action was accompanied with verbal praise. The manager was much older than the employee and the Tribunal commented that the manager said she was ‘vulnerable at the time due to a bereavement of her son’. Mr Raj’s additional race discrimination allegations had been described as ‘baseless’ and so looking at the allegations together, he was viewed by the Tribunal as a person who may ‘see things that are not there’.
This was a controversial decision because if the facts had involved a male manager massaging a junior female employee’s shoulders in the office, then it would normally have been found to have a sexual element. It is possibly something that will be challenged on appeal, and we will of course update you on any future developments.
This decision demonstrates how it is important for an individual bringing a claim to satisfy all aspects of the legal definition for sexual harassment. It is also important for employers to note that behaviour that one employee thinks is acceptable (whether harassment or not) may not be viewed as acceptable by another, even if it is in front of others, and that the motivation behind physical contact between employees may not always be clear.
Employers should ensure that their anti-harassment training and equal opportunities policies discourage any form of unwanted physical conduct, as to do otherwise could be risky. If you would benefit from a review of any of your workplace policies, please contact Pure to find out how we can help.
If you would like advice about an allegation of sexual harassment, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).