We analyse a case on whether massaging an employee’s shoulders was found to be sexual harassment.
In this case the claimant, Mr. S. Raj, had brought a claim of harassment against his former employer, CBS Ltd, on the grounds that on several occasions his female manager had massaged his shoulders, neck and back. The Tribunal had to determine whether this amounted to harassment within the protection provided by the Equality Act 2010.
Section 26(1)–(2) provides a two-part definition of harassment:
- first, the unwanted conduct must relate to a “relevant protected characteristic” or be “of a sexual nature”; and
- secondly, the unwanted conduct must have the purpose or effect either
- of violating the other person’s dignity, or
- of creating “an intimidating, hostile, degrading, humiliating or offensive environment” for the other person.
At first instance, the Tribunal found that Mr. Raj had indeed been subjected to unwanted conduct having the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. It decided, however, that the massaging was not “of a sexual nature”. It also found no facts to conclude that the unwanted conduct related to the claimant’s sex as a “relevant protected characteristic”. The purpose of the conduct was instead found to be “misguided encouragement.”
Furthermore, the EAT confirmed that the Tribunal was correct in finding that the burden of proof had not shifted to the employer, meaning Mr Raj had failed to establish that the employer had a case to answer in terms of his harassment claim. Satisfying the other elements of the definition of harassment, i.e. showing it was unwanted conduct with the required negative purpose or effect on the employee, was not enough to suggest the conduct was related to his sex. Similarly, the fact that his manager had given untruthful or incorrect evidence about what happened was not enough for the Tribunal to infer that the conduct related to his sex. For these reasons Mr Raj’s harassment claim and his subsequent appeal failed.
This case therefore serves to remind us of the precise statutory definitions which a claimant is required to meet in order to bring a successful claim for harassment. Employers should also make sure any anti-harassment training and policies are in place to help reduce the risk of any potential misunderstandings.