Not according to the facts of this case, was the – somewhat surprising – finding of the Employment Appeal Tribunal in the recent case of Raj v Capita Business Services Limited & Ms Ward.
The law relating to unlawful harassment in the workplace is set out in the Equality Act 2010. The Equality Act 2010 defines unlawful harassment as “unwanted conduct” which is related to a protected characteristic (such as sex or gender) and which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
The Equality Act 2010 also provides that it is unlawful harassment where someone engages in unwanted conduct of a sexual nature where that conduct has the purpose or effect of violating another’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
For a tribunal to decide whether the unwanted conduct has the effect referred to above on the individual, the following are considered:
- The perception of the individual;
- The circumstances of the case; and
- Whether it is reasonable for the conduct to have the effect.
So, it is both a subjective test (i.e. what effect did it have on the individual) and an objective one (was it reasonable for the conduct to have that effect).
There are special rules in discrimination cases for who has the burden of proving the case. The onus is on the individual (the “claimant”), first, to prove facts from which a tribunal can decide discrimination has taken place. Once the individual has done this, the burden of proof shifts to the employer (the “respondent”) to prove that no discrimination has taken place.
In basic terms, therefore, it is only after a claimant provides evidence of discrimination, and the tribunal believes that a case of discrimination may have occurred as a result, that the accused employer has to provide a defence.
Mr Raj was employed by Capita Business Services Limited (“Capita”) as a customer service agent for a year before he was dismissed. He brought discrimination claims against Capita including for unlawful harassment.
Mr Raj’s claim of unlawful harassment centred on his claim that his team leader, Ms Ward, had massaged his shoulders, neck and back on several occasions while he was at his desk and that this unwanted conduct constituted unlawful harassment either related to his sex or of a sexual nature.
Following a hearing of the evidence, including witness testimony from Ms Ward herself, the Employment Tribunal rejected Ms Ward’s account that she merely tapped Mr Raj on the shoulder. The Tribunal found that Ms Ward had massaged Mr Raj’s shoulders long enough for him to feel uncomfortable, and that this had taken place two or three times. However, the Tribunal said that there was insufficient evidence that the unwanted conduct was related to sex or that is was of a “sexual nature”.
In relation to Mr Raj’s argument that the unwanted conduct related to his sex, the Tribunal said that there was no evidence that Ms Ward had behaved like this to any other employee, male or female, that the contact was with a “gender neutral” part of the body and that the purpose of the conduct was “misguided encouragement”. Taking all these factors into consideration, the Tribunal concluded that, although the conduct was unwise and unwanted, it did not amount to unlawful harassment related to his sex.
The Tribunal also rejected Mr Raj’s alternative argument which was that the conduct of massaging his shoulders was of a sexual nature. The Tribunal found that the massaging was carried out in an open plan office, was done in a “jokey way” and accompanied by comments like “well done”. All of this was, according to the Tribunal, inconsistent with sexual behaviour.
Mr Raj appealed. One of the grounds of his appeal was that the burden of proof had been misapplied by the Employment Tribunal. He said once the Tribunal had decided that the conduct was unwanted and had the prohibited effect (of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him) and also rejected Ms Ward’s account of her conduct as untruthful, that was enough for the burden of proof to shift to Capita to prove that no unlawful act had been committed.
The Employment Appeal Tribunal rejected Mr Raj’s appeal. The appeal tribunal said that Mr Raj had not produced enough evidence that sexual harassment had occurred for the burden of proof to shift to the Respondent.
The Employment Appeal Tribunal said it wasn’t enough for Mr Raj to prove the conduct was unwanted and had the prohibited effect for the burden of proof to shift – more evidence was needed that the conduct was related to sex.
As for the fact that the Tribunal had not believed Ms Ward’s evidence to be truthful, this did not automatically mean that the Tribunal had to conclude that the reason for the conduct was related to sex. The Employment Appeal Tribunal referred to the Tribunal’s findings (that it was a one off and Ms Ward had not behaved this way towards anyone else and that it was done in a jokey way) and concluded that the Tribunal had not misapplied the burden of proof rules and was entitled to find that the burden of proof had not shifted in Mr Raj’s case.
Points to note
It’s fair to say that this case was very much decided on its facts and that neither Mr Raj nor Ms Ward appear to have come across as the most reliable of witnesses. However, the case does provide a useful insight into the burden of proof in discrimination cases. The case demonstrates how it is not enough for an employee to show that the conduct complained of is unwanted and that it had the effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
The employee must provide evidence that the conduct is related to sex for the burden of proof to then shift to the employer to prove that the conduct was not unlawful harassment. In Mr Raj’s case, the Tribunal and Employment Appeal Tribunal clearly felt he hadn’t produced enough evidence of this connection.
That said, the decision reached in this case will probably be surprising to most people. This is particularly so, we would suggest, in relation to the Tribunal’s finding that prolonged massaging of a colleague’s shoulders did not amount to conduct of a “sexual nature” or that the Tribunal found it relevant – when concluding that the manager’s conduct was not related to sex – that the massaging was of a “gender neutral” part of the body!
You can’t help but wonder if the same conclusion would have been reached if the situation had been reversed and it was a male team leader who massaged a female employee’s shoulders and then later made out in their witness evidence that they only “tapped” their colleagues shoulders.
It is worth noting that Mr Raj did not appeal against the finding of the Tribunal that the prolonged massaging of his shoulders was not conduct of a “sexual nature”, which is a shame. It would have been very interesting to hear what the Employment Appeal Tribunal had to say on that point.
Action to take
This case is a cautionary tale of how it is generally inadvisable for work colleagues to give each other impromptu massages in the workplace or during any work social events!
Make sure you have clear rules in place as to what amounts to acceptable conduct in the workplace and that your staff are aware of these rules.
Undoubtedly massaging can be a good way of relieving stress and we do not deny that providing workplace massage can be a good way for employers to support their staff and help them be less stressed and more productive. However, our message is that this is an area best left to the professionals! If this is a benefit you would like to offer your staff, we recommend using one of the many businesses out there that offer workplace massage therapy services.