Can a massage given in the workplace constitute harassment related to sex? A recent Employment Appeal Tribunal decision confirmed that a female manager massaging a male employee’s shoulders in an open plan office, whilst unwanted conduct, was not “related to sex” for the purposes of a harassment claim under the Equality Act 2010.
Mr Raj was employed by Capita Business Services Limited from Autumn 2016 until he was dismissed in August 2017. He brought a claim in the Employment Tribunal for harassment under the Equality Act and alleged that, on several occasions while he was sat at his desk, his (female) team leader, W, massaged his shoulders, neck and back. He said that this constituted unwanted conduct related to sex for the purposes of bringing a claim for harassment under the Equality Act.
An Employment Tribunal found that the conduct was unwanted and had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for Mr Raj (the first stage of the two-stage test needed to establish harassment). However, it concluded that the conduct was not sexual in nature or related to sex; the reason for it was misguided encouragement. The second stage of the two-stage test was therefore not satisfied.
The Employment Tribunal found that W had given Mr Raj massage-type contact lasting for 2 – 3 minutes which was long enough to make him feel uncomfortable. However, there was no evidence of W behaving in a similar way to anyone else, male or female. The Employment Tribunal concluded that W had stood over Mr Raj, who was sitting down, and the contact was with a “gender neutral” part of the body in an open plan office. Although the conduct was uncomfortable and unwise, it did not constitute harassment under the Equality Act.
This case highlights that although W’s conduct was not sufficient to amount harassment, it was still inappropriate and resulted in Mr Raj feeling uncomfortable at work. The case reminds us that employers would be wise to carry out regular reviews of their equality policies whilst ensuring that that members of staff have regular Equal Opportunities training.