A harassment claim under the Equality Act 2010 cannot succeed unless there has been unwanted conduct that has the purpose or effect of violating an employee's dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment. However, the conduct must also be related to a protected characteristic. In Raj v Capita Business Services Ltd the claimant did not persuade the EAT that there was the necessary connection between unwanted conduct and a protected characteristic for his sexual harassment claim to succeed.
Mr Raj claimed that his female team leader had stood behind him in an open plan office and massaged his shoulders on two or three occasions and that this was sexual harassment. The tribunal accepted that the conduct occurred, that it was unwanted and that it had the effect of creating an intimidating, hostile, degrading, humiliating or offensive work environment. However, after some deliberation, it also found that the incidents were not of a sexual nature, but rather that they were misguided attempts at encouragement. As such they were not related to sex. The sexual harassment claim failed.
The EAT upheld the decision. Although the tribunal had not expressly considered whether there were facts from which it could conclude that the physical contact related to sex, this was not an error of law. It had considered the evidence, including the context within which the incidents had occurred, to see if the conduct related to sex and decided that it did not. The tribunal was entitled to find that the reason for the conduct was misguided encouragement. The fact that the conduct was "unwise and uncomfortable" did not make it harassment.