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Does massaging a junior employee qualify as sexual harassment?

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29th November, 2019

In the wake of the ‘#MeToo’ movement, what constitutes as appropriate conduct in the workplace is increasingly scrutinised.

Some forms of physical contact are clearly inappropriate whereas other forms are more subtle; this can give rise to confusion as to whether harassment has taken place as witnessed in the recent case below.

In Raj v Capita Business Services Ltd, the Claimant alleged that his manager had massaged his neck and shoulders for two to three minutes on multiple occasions when she was praising his work.

Consequently, the Claimant issued claims against his employer and the manager on the grounds of harassment. He argued that he was harassed because of his sex, in other words he was harassed because he is a man and his manager is a woman, and/or he was sexually harassed. The Employment Tribunal (the ‘ET’) considered each claim separately but dismissed them both because they failed to meet the appropriate legal tests as outlined under the Equality Act 2010 (the ‘EqA’).

Whilst the ET accepted that the massage had taken place, it concluded that the conduct was not sexual in nature or indeed related to sex. When making this decision the ET considered the context behind the manger’s behaviour but it was held that ‘misguided encouragement’ rather than a sexual motive prompted her actions.

Further, the massage was given only to the shoulders and was accompanied by praise given in a ‘jokey way.’ The claim for sexual harassment therefore failed.

The ET then moved on to consider whether the Claimant was harassed due to his sex. To be successful the Claimant had to meet the three elements of the legal test:

  • that there was unwanted conduct of a sexual nature;
  • it was related to a protected characteristic (in this case the Claimant’s sex); and
  • it had the purpose or effect of creating an intimidating, hostile or degrading environment that violated the Claimant’s dignity.

The ET acknowledged that the conduct was clearly unwanted and that the Manager’s behaviour could reasonably be perceived as degrading or humiliating to the Claimant based on his subordinate position.

However, the ET believed that there was little evidence to suggest that the unwanted conduct was related to the Claimant’s sex and ruled that the second element of the legal test was not met. The act was committed on a gender neutral part of the body and there was no evidence of the manager behaving in a similar way to anyone else, male or female, illustrating that the conduct was solely directed to the Claimant. Therefore, unwise and uncomfortable the conduct was, the complaint failed.

Considerations for Employers

Whilst this particular claim failed, it would be unwise to rely on this case as authority that ‘massaging’ is acceptable conduct. Case law has repeatedly shown that harassment and discrimination cases are fact dependent and context specific. Employees should always err on the side of caution and avoid physical contact if they believe it has the potential to be misconstrued.

Employers are vicariously liable for acts of discrimination, including harassment, which are committed in the workplace. Notwithstanding, an employer has a defence if it can show that it took all reasonable steps to prevent the employee from doing the act complained of.

The employer will need to show that it has taken preventative action for example detailed anti-harassment policies and appropriate training provided to staff. This case depicts how there can be a disconnect between what one individual believes is acceptable behaviour from another. Therefore employers should have comprehensive and detailed staff training in place to ensure all their employees are aware of what constitutes acceptable conduct in the workplace.

Helen Watson

Employment

Head of Employment & Partner
Email: [email protected]
Tel: 01244 405 565

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