Date updated: Monday 21st October 2019

The Employment Appeal Tribunal (‘EAT’) upheld the decision of the employment tribunal (‘ET’) that a massage provided by a team leader did not amount to sexual harassment under the Equality Act.

The Law 

Section 26 of the Equality Act 2010 provides that sexual harassment can occur when A engages in unwanted conduct of a sexual nature, or related to their gender, which has the purpose or effect of either violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

If A’s unwanted conduct has this purpose, the court will not consider the effect on B, as the definition has been met. If A’s conduct does not have this purpose, the effect on B will be considered and the relevant factors that will be taken into account are B’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

Raj v Capita Business Services Ltd - The Facts

The Claimant’s employment was terminated by the Respondent due to poor performance. The Claimant brought a number of claims including for harassment under the Equality Act 2010 (‘EA’) in relation to his team leader, the second Respondent. He alleged that on several occasions she had given him a massage, feeling his shoulders, neck and back and that this was unwanted conduct of either a sexual nature or unwanted conduct relating his sex under section 26 of the EA.

The ET found that the conduct was unwanted and accepted that it had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. Despite highlighting that the conduct was ‘unwise and uncomfortable’ they rejected the claim on the basis that the conduct was not sexual in nature, nor did it relate to sex. They noted that the evidence base for a link to the Claimant’s sex was limited as there was no evidence that she behaved a similar way to anyone else and the contact was a gender neutral part of the body. The ET concluded that the purpose was ‘misguided encouragement’.

The Claimant appealed on the grounds that the ET had failed to apply section 136 of the EA which provides for a two stage approach to the burden of proof in discrimination claims. Stage 1 is for the Claimant to show a prima facie case of discrimination and under stage 2, the burden of proof shifts to the Respondent to prove that they did not discriminate, but only if stage 1 is satisfied.

Decision

The EAT dismissed the appeal. It noted that section 136 requires consideration of whether the ET could conclude that the massaging of the Claimant was related to his gender and if so, had the Respondents shown that it was not, in fact, related to his gender.

The Claimant sought to rely on two matters to shift the burden of proof. The first is that the ET had found that the conduct was unwanted and secondly that the ET had rejected the Respondent’s assertion that she only tapped him on the shoulder once. Regarding the former, the EAT held that the ET had lawfully determined that the facts did not suggest the unwanted conduct related to the Claimant’s sex and that satisfaction of other statutory criteria, did not in itself give rise to a prima facie case that the conduct was related to the Claimants gender. Regarding the latter matter, the fact that the ET rejected the Respondent’s account, also did not mean that the conduct related to sex.

The Claimant tried to rely on the case of Birmingham City Council & Anor v Millwood. However the EAT held that the decision in this case was not intended to lay down a rule of law that the burden of proof must shift if the tribunal finds the respondent has given untruthful or wrong evidence about an aspect of whether the conduct happened or why it happened.

The EAT agreed with the ET’s finding that this was an isolated incident and the reason for the unwanted conduct was misguided encouragement, so therefore unrelated to the Claimant’s sex.

Implications for employers 

This decision shows the duty on Claimant’s to satisfy all the required tests to bring a claim for sexual harassment. To avoid claims, employers should provide training to staff and ensure their anti-harassment policy makes clear that inappropriate physical contact is not tolerated in the workplace.