The EAT has held that a female manager did not harass a male team member when she gave him an unwanted back, neck and shoulder massage in an open plan office.  Although the massage constituted unwanted conduct which had the effect of creating an intimidating, hostile, degrading, humiliating or offensive atmosphere, the EAT held that it was not sexual in nature, nor was it related to sex, and, therefore, did not constitute harassment under the Equality Act 2010 (Raj v Capita Business Services Ltd and anor, EAT)

Background

The Equality Act 2010 (EqA) seeks to prevent individuals from being discriminated against at work, in other words, to avoid them being treated less favourably because they possess any (or a combination) of the protected characteristics listed in section 4 of EqA (PCs). 

Under section 26 of EqA, harassment takes place if there is: 

• unwanted conduct related to a relevant PC; or 
• unwanted conduct of a sexual nature; 

which has the purpose or effect of either: (i) violating the complainant’s dignity; or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant. 

Section 136 EqA requires claimants to first prove facts from which, in the absence of an adequate explanation, a tribunal could conclude that discrimination had taken place. If a claimant can establish this prima facie case, the burden of proof will shift to the respondent and, unless they can prove that discrimination had not occurred, a finding in the claimant's favour will follow. However, if a claimant is not able to establish a prima facie case under s136 EqA, then their claim will fail.

Facts   

Mr Raj (the Claimant) worked as a customer service agent for Capita Business Services Ltd (Capita).  His employment terminated approximately ten months after starting work and two months after the introduction of a new team leader.  He made various allegations against Capita and his team leader (Ms Ward) at the Employment Tribunal, including sexual harassment and/or harassment related to sex.

Employment Tribunal 

The Employment Tribunal (Tribunal) rejected Ms Ward's evidence that she had only "tapped" the Claimant's shoulders on one occasion, instead preferring the Claimant's evidence that there was "massage-type contact" lasting two or three minutes, which was long enough to make him feel uncomfortable.  However, although the Tribunal found that this conduct was unwanted and had the effect of creating an intimidating, hostile, degrading, humiliating or offensive atmosphere, the Tribunal also found that:

• there was no evidence of Ms Ward behaving in a similar way to others in the office (whether male or female); and that
• the purpose behind the conduct appeared to be misguided encouragement from a standing manager to a sitting team member, with all contact being with a 'gender neutral' part of the body and in an open plan office.  

Ultimately, as "unwise and uncomfortable as the conduct was", the Tribunal concluded that the Claimant's claim for harassment failed because there was no evidence that the conduct was sexual in nature, nor that it was related to sex.  The Claimant appealed.

Employment Appeal Tribunal 

On appeal, the Claimant argued that the Tribunal should have applied the shifting burden of proof provisions under section 136 EqA when:

• it found that the conduct was unwanted with the effect described under section 26 EqA; and/or 
• it rejected Ms Ward's evidence that she had only tapped the Claimant once on the shoulders.  

The Claimant relied on the case of Birmingham City Council v Millwood, 2011, where the EAT had held that an inference of discrimination could arise from a finding that a claimant had given an untrue account.

However, the EAT rejected the Claimant's arguments, finding that neither satisfying all the other statutory criteria, (bar one), was enough to shift the burden of proof for the claim(s) to give rise to a prima facie case that the unwanted conduct was related to sex; nor was the fact that the Tribunal had rejected Ms Ward's account mean that it had to infer that the reason for the conduct was related to sex. 

Comment

This judgment is interesting because it throws up the obvious question of whether the outcome would have been the same had the manager been a man and the team member a woman.  Are there any circumstances where an unwanted neck, back and shoulder massage instigated by a male manager to a female team member would not be viewed as being conduct of a sexual nature or related to sex?  In this case, is it plausible to suggest that the female manager was just as likely to have massaged the shoulders of a female in the team?  Despite the outcome, it is clear that the Tribunal was uncomfortable with the manager's conduct, so this case certainly shouldn't be relied upon to rubber-stamp dubious behaviour.  The key takeaway for employers is still to continue to work towards cultivating an environment where everyone’s dignity at work is respected through policies and regular training on matters such as harassment and equal opportunities.

Raj v Capita Business Services Ltd and anor, EAT