The thought of massaging a colleague at work would cause most of us to cringe. However, there is often a difference between conduct that is inappropriate in the workplace and conduct which is discriminatory.
This distinction was at the heart of the recent case of Raj v Capita Business Services Ltd. The Claimant (R) and his manager (W) worked in an open plan office. On several occasions, W had stood behind R while he was sat at his desk and given him a massage. R submitted that this lasted two or three minutes, that W had felt his shoulders, neck and back and that this had made him feel uncomfortable.
R brought a sexual harassment claim against his employer in relation to W’s massages.
The legal definition of harassment is unwanted conduct related to a relevant protected characteristic (e.g. someone’s age, disability, race, gender reassignment, religion of belief, sex or sexual orientation) or conduct of a sexual nature and which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The Employment Tribunal rejected his claim. Even though it found there was unwanted conduct creating an offensive environment for R, the Tribunal was not satisfied that the conduct was of a sexual nature or related to sex. There was no evidence that had W behaved in a similar way with any other colleagues and the massages had been with ‘gender neutral’ parts of the body. The Tribunal concluded that W’s massages were a form of ‘misguided encouragement’, not sexual harassment.
R appealed against the Employment Tribunal’s decision, arguing that the Employment Tribunal had erred in not shifting the burden of proof onto the employer to try and prove that the reason for W’s conduct was not related to sex. R based this appeal on the fact that there had been a finding of unwanted conduct producing the necessary offensive environment and the Tribunal had also dismissed W’s account of the massages as unreliable.
The Employment Appeal Tribunal dismissed the appeal. There had been no error in the Tribunal’s decision. Whilst R had suffered unwanted conduct, which had also created the required offensive environment, R had failed to show that this conduct had related to the protected characteristic of sex or was of a sexual nature. In any case, the Tribunal had accepted that there was a non-discriminatory reason for the conduct (i.e. motivating or encouraging R). The EAT also concluded that while the Tribunal had dismissed parts of W’s account, this did not mean the conduct was related to sex.
This case serves as a reminder of how seemingly harmless actions in the workplace, however well-intentioned, can potentially be discriminatory and highly damaging to companies. Had the actions of W been more sexual in nature, the outcome could have been very different. Each case will turn on its own facts, so employers should ensure that any allegations of harassment are thoroughly investigated and take legal advice where there is any uncertainty.