Massage harassment appeal rejected by EAT

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A female manager who massaged the shoulders of a male employee in the workplace has been ruled as unwanted conduct but, crucially, ‘not related to sex’ regarding a claim of harassment brought by the employee.

An employment tribunal’s initial decision was upheld by the Employment Appeals Tribunal in Raj v Capita Business Services Ltd and anor. R was dismissed by the firm on 8 August 2017, having been recruited in the previous autumn.

Bringing a claim under S.26 of the Equality Act 2010, he alleged that on several occasions whilst at his desk in an open plan office, his team leader, W, stood behind him and massaged his shoulders, neck and back. R contended that the contact was of a sexual nature or related to sex, as specified in S.26 of the Equality Act.

In rejecting the harassment claim, the employment tribunal found that, in accordance with the first part of the definition of harassment contained in S.26, the conduct of W was unwanted, creating an intimidating, hostile, degrading, humiliating, or offensive environment for R. However, it rejected the claim that the conduct was sexual in nature or related to sex.

The tribunal found that R had established through evidence that massage-type contact lasting two or three minutes had taken place and it rejected W’s account that she had once simply tapped R’s shoulders.

Taking into account the context of the conduct and where it took place, the tribunal concluded that the intention of W, however misguided and distressing for R, was to provide encouragement. In doing so, it highlighted a limited evidence base for a link to R’s sex and that there was no evidence of W behaving in a similar way to any other employee. The tribunal also concluded that contact involved a ‘gender neutral’ part of the body and that, although unwise and uncomfortable, it did not constitute harassment under S.26 EqA.

As part of his appeal, R maintained that the tribunal failed to apply the shifting burden of proof under S.136 EqA. However, the EAT found that a lack of explicit reference to S.136 or the associated case law in the initial hearing was not an error of law and that the tribunal had met its statutory requirements. It went on to state that although the conduct was unwanted and met the first part of the criteria for harassment as defined by S.26, it did not mean that it was related to R’s sex.

Equally, the EAT did not accept the tribunal’s rejection of W’s account should automatically mean that it should infer that the motive of the conduct was related to sex. R sought to rely on a previous EAT decision which had held that an inference of discrimination could arise from an untrue account provided by a respondent.

However, the EAT in this case did not accept that the EAT in the earlier case had intended to lay down a rule of law that the burden of proof must shift in these circumstances. In Raj v Capita Business Services Ltd and anor, the tribunal specifically found that the incident was isolated and that W had not behaved comparably with any other employees. On this basis, the tribunal was entitled to find that the burden had not shifted and to reject the appeal.