Does a massage equate to sexual harassment?

In Raj v Capita Business Services Ltd the Employment Appeal Tribunal (EAT) was tasked with assessing whether the act of a manager massaging her subordinate’s shoulders amounted to unwanted conduct of a sexual nature.

The claimant worked as a customer services agent for the respondent for a year before he was dismissed. Following the dismissal he alleged that he had been sexually harassed on several occasions by his team leader, insisting that she would often stand behind him at his desk and place her hands on his shoulders, neck and back.

During the initial employment tribunal (ET) the line manager insisted that she had only tapped the claimant on the shoulder, however the ET found that she had massaged his shoulders long enough for him to feel uncomfortable, and that this had taken place two or three times. Despite this, the ET said that there was insufficient evidence that the unwanted conduct was related to sex, or that is was of a sexual nature, as it related to a gender neutral part of the body and occurred in a busy open plan office.

The ET also held that no evidence had been presented to them that suggested the conduct had been a result of the claimant’s gender. As far as they could see, the team leader had not behaved in this manner towards anyone else, male or female, and it was isolated conduct. They also took into account the perception of the employee, who had previously raised numerous complaints against the organisation, such as race and disability discrimination, which had been unfounded. As a result, the ET believed that he saw ‘things that were not there’, calling into question the reasonableness of his perception.

Ultimately, the ET concluded that the purpose of the conduct was misguided encouragement from a team leader to a member of her team. Although this form of contact had been unwise, it did not constitute harassment. Therefore, the claimant appealed to the EAT.

Although he did not question the tribunal finding the contact had not been of a sexual nature, he did claim the ET erred in failing to shift the ‘burden of proof’ to the respondent to prove that unlawful harassment in relation to his gender did not occur.

However, the EAT dismissed this appeal, finding that the ET had correctly determined that the conduct did not amount to sexual harassment and therefore there was no need to shift the burden of proof across to the respondent. They agreed that there was no evidence to suggest that his treatment had been a result of his gender and that unwanted conduct in itself did not automatically give rise to a prima facie case that this conduct was related to a protected characteristic.

The EAT also stated that, even if the burden had shifted and the respondent had been required to provide an explanation for the conduct, they had already done so. The massaging had amounted to misguided encouragement rather than anything to do with the claimant’s gender.

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