Get the ‘massage’ – no touching!

Mr Raj (R) was employed by Capita Business Services (C) as a Customer Service agent. His employment was terminated in August 2017 for capability following a failed probationary period.

Following his dismissal, R brought several claims to the employment tribunal, including claims for sexual harassment or harassment related to sex in relation to actions by his team leader, Ms Ward (W).

During the Employment Tribunal (ET) hearing, the ET found that there had been physical contact between W and R on at least two occasions, and that R’s colleagues had witnessed this contact in the office. It listened to evidence that W had, on occasions, massaged R’s shoulders and that the massages were long enough to make R feel uncomfortable.

It is important to note at this point that in order for a Claimant to succeed in a harassment case, they must satisfy a two-stage test under s26 of the Equality Act (EqA), namely that:

1. the conduct has the purpose or effect of violating the individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment; and
   
   
2. the conduct was unwanted and related to a protected characteristic (in this case the gender of the individual).

If a Claimant can evidence the two stages, the burden of proof switches to the Respondent to provide a reasonable explanation for the conduct. It is generally accepted that unwanted conduct, such as massaging an employee, would be enough to satisfy the tests above. However, the ET took a different view on the particular facts of this case.

Upon providing their judgment, the ET broke down the two-stage test:

1. Under the first limb of the test, the ET found that R had shown that W had engaged in unwanted conduct, namely the brief massaging of R on two or three occasions, and that this had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for R.
   
   
2. The ET then had to decide if the conduct related to R’s gender. The ET found that it was not related to gender because W had not massaged anyone else, male or female, and it was isolated conduct. Further, the massages were described by the ET as on a “gender neutral part of the body” and were accompanied by phrases such as “well done” and were a misguided attempt at encouragement.

In its judgment, the ET rejected R’s claim that W had run her hands up and down his back and concluded that the massage was not consistent with sexual behaviour. As a result of failing to satisfy both limbs of the test, R was unsuccessful in his harassment claims.  R appealed to the Employment Appeal Tribunal (EAT).

R alleged that, as the ET had accepted that he satisfied the first limb of the two-stage test, the burden of proof should have shifted to C and W to show that the conduct was not related to sex. Neither C nor W had done this, as the ET had reached that conclusion on its own. 

However, the EAT found that the burden of proof had not shifted to C and W, as R had not established both limbs of the two-stage test.

In any event, the EAT found that C and W had provided a non-discriminatory explanation for W’s conduct through their evidence. The purpose of the behaviour was “misguided encouragement”!

What does this mean for you or your business?

This is an interesting case, and it would be interesting to see if the same argument would run in reverse, i.e. if a senior male manager massaged the shoulders of a junior female in an open plan office.

Under the Equality Act, harassment does not need to be intentional. Creating an intimidating, hostile, degrading, humiliating or offensive environment (which is linked to a protected characteristic) will constitute harassment.

The business was lucky in this case which could have gone the other way, especially as defining the shoulders and back as a “gender neutral” area could potentially be problematic and open to challenge in future cases.

The ET also acknowledged that, even if this was not harassment under the Equality Act, it was still unwanted and unwise behaviour. As an employer, this case provides a salutary tale – a simple “well done” is enough, don’t provide encouragement by massaging or touching your employees!

What do you need to be doing now?
 
Review your equality and diversity and harassment and bullying policies and train your staff where necessary. Remind them that they might commit harassment under the Equality Act, even if that is not their intention.

Recommended Reading

A copy of the EAT judgment is available here.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.