When does “unwanted conduct” constitute harassment?
The EAT has held that a female manager did not harass a male team member when she gave him an unwanted back, neck and shoulder massage in an open plan office. Although the massage constituted “unwanted conduct” which had the effect of creating an intimidating, hostile, degrading, humiliating or offensive atmosphere, as it was not sexual in nature, or related to sex it did not constitute harassment under the Equality Act 2010.
Under section 26 of the Equality Act harassment takes place if there is unwanted conduct related to a protected characteristic or unwanted conduct of a sexual nature which has the purpose or effect of either:
- violating the complainant’s dignity; or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant.
Section 136 of the Equality Act places the burden of proof on a Claimant to prove facts from which, in the absence of an adequate explanation, an Employment Tribunal could conclude that discrimination had taken place. If a Claimant can establish this, the burden of proof will shift to the Respondent and, unless they can prove that discrimination had not occurred, a finding in the Claimant’s favour will follow.
The Claimant was a male employee who worked for Capita Business Services Ltd (Capita). He made various allegations against Capita and his team leader (Ms Ward) at the Employment Tribunal, including sexual harassment and/or harassment related to sex.
Mr Raj claimed that there had been “massage type contact” lasting two or three minutes in an open plan office performed by Ms Ward, his team leader. He said this was long enough to make him feel uncomfortable.
Ms Ward claimed she had only “tapped” Mr Raj’s shoulders on one occasion. The Employment Tribunal favoured Mr Raj’s evidence and found that the contact from Ms Ward was unwanted and had the effect of creating an intimidating, hostile, degrading, humiliating or offensive atmosphere.
The Tribunal also found that there was no evidence of Ms Ward behaving in a similar way to others in the office (whether male or female).
However the Tribunal concluded that the Claimant’s claim for harassment failed because there was no evidence that the conduct was sexual in nature, nor that it was related to his sex. The Claimant appealed.
On appeal to the Employment Appeal Tribunal, the Claimant argued that the Tribunal should have applied the shifting burden of proof provisions under section 136 of the Equality Act when:
- it found that the conduct was unwanted with the effect described under section 26; and/or
- it rejected Ms Ward’s evidence that she had only tapped the Claimant once on the shoulders.
However, the EAT rejected the Claimant’s arguments. It held that the burden of proof for the claim(s) had not been shifted so as to give rise to a prima facie case that the unwanted conduct was related to sex and the fact that the Employment Tribunal. The EAT took into account the fact that the unwanted conduct had taken place in an open plan office, involved a “gender neutral” part of the body and the manager had not behaved in a comparable way to any other employee, male or female.
We question whether the outcome would have been the same in this case had the manager been a man and the team member a woman. We can see circumstances where an unwanted neck, back and shoulder massage instigated by a male manager to a female team member would be viewed as being conduct of a sexual nature or related to sex.
This decision highlights how very fact-specific each case is and how important it is for a Claimant to satisfy all aspects of the legal definition in order to succeed in a claim for sexual harassment.
It does not, however, condone physical contact in the workplace and employers should ensure that any anti-harassment training and policy makes this clear to minimise potential misunderstandings.
The learning point for employers is still to continue to work towards cultivating an environment where everyone’s dignity at work, male or female, is respected through policies and regular training on matters such as harassment and equal opportunities.