Unwanted massage was not harassment!

Raj v Capita Business Services Limited (Employment Appeal Tribunal)

The EAT has held that a female manager who had given an unwanted massage to a junior colleague had not subjected him to unlawful harassment, on the basis that such actions did not constitute conduct of a sexual nature or "related to sex" as required under the Equality Act 2010 ("EqA").

Following his dismissal, the Claimant in this case alleged that his team leader had subjected him to harassment of a sexual nature and/or related to sex by giving him unwanted shoulder, neck and back massages whilst sitting at his desk. She denied this, arguing that she had done no more than tap his shoulders on one occasion by way of encouragement.

The Employment Tribunal rejected the claim. Although it was satisfied that such conduct – which it accepted lasted for two to three minutes at a time – was unwanted and had the necessary effect of creating a degrading environment for the Claimant, it did not consider that the actions were of a sexual nature or related to the Claimant's sex, as required under the EqA. Whilst it accepted that the conduct was unwise and uncomfortable, it placed weight on the fact that the relevant contact was with a "gender neutral" area of the body in an open plan office and could properly be characterised as "misguided encouragement".

The EAT dismissed the Claimant's appeal, stating that the Tribunal's procedural approach was sound. In particular, it confirmed that the Tribunal's rejection of the manager's factual account did not require it to infer, or operate on a presumption, that the reason for her conduct fell within the scope of EqA's prohibitions.
Employers should note that the EAT's decision in this case was procedure-focussed and did not question the Tribunal's findings of fact, which were ultimately crucial to the outcome. Discrimination and harassment cases are highly fact- and context-specific, to be assessed on a case-by-case basis. It would, for example, be interesting to see whether or not the Tribunal would have reached the same conclusion had the manager in this case been male and the Claimant female.