Does massaging a work colleague’s shoulders equate to harassment? If it does, is it contrary to the Equality Act 2010? And, who has to prove the conduct was of a sexual nature? These were the questions before the EAT in the recent case of Raj v Capita Business Services & Ward.

Yes, it was conduct which created a “hostile environment” for the employee, but was it sexual or just misguided? And who has the “burden of proof”?

Background

Mr Raj worked for Capita Business Services (the “Employer”) as a Customer Service agent, providing support services on behalf of the NHS. He was employed from autumn 2016 until 8 August 2017 when his employment was terminated following his probation period. His team leader from 8 May 2017 until his dismissal was Ms Ward. Mr Raj worked in an open plan office. He alleged that on several occasions while at his desk, Ms Ward had stood behind him and given him a massage, feeling his shoulders, neck and back. He alleged that this was unwanted conduct of either a sexual nature or relating to his sex, so as to constitute harassment under the Equality Act 2010 (“EA10”).

Notwithstanding the Employer’s denials, the ET found that the conduct was unwanted and had the effect of creating an intimidating, hostile, degrading, humiliating, or offensive environment for Mr Raj. However, Mr Raj was unsuccessful in establishing harassment as the Tribunal did not find the unwanted conduct to be either sexual or related to his gender.

Mr Raj appealed, arguing that the ET had made a mistake. If the conduct was unwanted and created a hostile environment – as defined in the Equality Act 2010, surely the burden of proof shifts to the employer?

Decision

Mr Raj’s appeal on this point was dismissed. The EAT commented that while the ET could have been clearer in how it determined the issue, it had still correctly approached the question of whether Mr Raj had shown Ms Ward’s massages were either of a sexual nature or related to his sex. Mr Raj had not identified anything to show that either were the case.

A hostile environment is not enough

It was therefore not enough to merely show that the unwanted conduct had an effect prohibited by EA10 (e.g. that the conduct created a hostile environment). Something further needed to be demonstrated in order to shift the burden of proof. The EAT noted that even if the burden of proof could be shifted, the ET had accepted Ms Ward’s explanation that the massages were a form of misplaced encouragement – they were not of a sexual nature or related to Mr Raj’s sex. It was open to the ET to decide this even though it rejected Ms Ward’s explanations as to the extent of the conduct.

Lessons

This is of course not a licence for managers to engage in in physical contact with their employees. Ms Ward accepted with hindsight that this was not an appropriate form of behaviour in an office and employers are well advised to ensure that employees keep their hands to themselves.

The case demonstrates that creating a hostile environment through unwanted conduct is of itself not necessarily enough to establish a harassment claim – the conduct must be related to a protected characteristic or be of a sexual nature. However, clearly no employee would want to work in hostile conditions for very long.

This comes from training and awareness of the risks associated with workplace conduct as well as promoting the wanted behaviours of good management practices. Sometimes such misguided behaviour will not be seen as non-sexual.

Fairness at work impacts upon how engaged and productive our workforces are. We’ll be discussing the impact of fairness at work to workplace productivity at our upcoming HR Conference on 17 October at Holborn Bars. We have a fantastic line up of speakers who will share their industry knowledge and specialisms to help you drive up productivity amongst your people.