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The Equality Act provides protection against “harassment” which is defined as “unwanted conduct” which is either “related to a relevant protected characteristic” (such as gender) or which is  “of a sexual nature” and which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”. 

There are special rules in section 136 of the Equality Act, often referred to as the “reverse” or “shifting” burden of proof provisions which set out when it is appropriate for a Tribunal to make a finding of discrimination or harassment. In basic terms these place an initial burden on a Claimant to show that there is evidence based upon which, in the absence of any other explanation, it could conclude that an unlawful act has occurred. If that is established the burden moves to the employer to provide an explanation which would rebut a finding of discrimination or harassment failing which the Tribunal must find that an unlawful act has occurred.  A recent case shows the application of these rules to the facts of a case where it might have been thought there was a strong argument that harassment had taken place.

In Raj v Capita Business Services Limited Mr Raj was employed by CBS Limited as a customer service agent. Mr Raj brought claims of race discrimination which were rejected by the Tribunal as “baseless”.   He also brought claims for harassment alleging that on several occasions, while he was at his desk, his team leader, Miss Ward, stood behind him and gave him a massage, feeling his shoulders, neck and back.  He said that this was unwanted conduct of either a sexual nature or related to sex within section 26 of the Equality Act.  The Tribunal rejected Ms Ward’s account that she had done no more than tap Mr R’s shoulders on one occasion.  It was also found that Mr Raj had established on the evidence that there was a massage type contact lasting two or three minutes, which was long enough to make him feel uncomfortable and that this had happened on at least two or three occasions.  The Tribunal rejected the claim that the conduct was “of a sexual nature”.  It decided that the context of the behaviour which was that the massage was done in an open plan office “said in a jokey way” and accompanied by comments of “well done” was inconsistent with sexual behaviour. It went on to note that, in relation to the alternative argument, there was a very limited evidence for a link to Mr Raj’s gender. There was no evidence of Miss Ward behaving in a similar way to anyone else, male or female.  The Tribunal concluded that the purpose behind the conduct was misguided encouragement.  The Tribunal found the contact was with a “gender neutral” part of the body.  Although the conduct was unwise and uncomfortable, it was not harassment under section 26 of the Equality Act.  Mr Raj appealed to the Employment Appeal Tribunal and argued that that the Tribunal failed to properly apply the reverse burden of proof provisions under section 136 of the Equality Act. The appeal related only to the argument that the conduct was related to sex.   

Mr R sought to rely on two factual matters to shift the burden of proof firstly the Tribunal finding that the conduct was unwanted and had the affect prohibited by section 26 and secondly, the fact that the Tribunal had rejected Ms Ward’s evidence that she only tapped him on the shoulder once.  In relation to the first point the EAT decided that the satisfaction of the other statutory criteria did not, of itself, give rise to an inference that the unwanted conduct was related to Mr Raj’s sex.  As to the second argument, the EAT did not accept that the fact that the Tribunal had rejected Miss Ward’s account meant that it was required to conclude that the reason for the conduct was related to sex.  The Tribunal had made it a specific finding that the conduct was an isolated incident and that Ms Ward had not behaved in a comparable way to any other employee, male or female.  The EAT therefore rejected the appeal and the Tribunal was right to find that the burden of proof had not shifted so Mr Raj’s claim failed.

Comment

The case is an interesting application of the reverse burden of proof provisions in determining whether harassment has occurred. It clearly demonstrates the old adage that “every case turn on its own facts” yet it perhaps a surprising outcome from a common sense point of view. The finding that prolonged and repeated massaging of a colleague’s back is not “conduct of sexual nature” is somewhat bizarre. If the roles had been reversed and a male manager had done this to a female employee one wonders whether the Tribunal might have been more sympathetic to the claim. The suggestion that if such behaviour is done in an open plan office and “in a jokey way” it is not of sexual nature arguably undermines much of the progress that has been made in exposing and prohibiting unacceptable and unwanted behaviour in the workplace whether it be committed by men or women. The issue of what amounts to conduct of “sexual nature” was not examined on appeal which focussed simply on whether the conduct could be said to be related to gender. In relation to that point the fact that there was no evidence of the Claimant behaving in this way towards anyone else and that the act was performed on a “gender neutral” part of the employee’s anatomy does not seem to be a wholly convincing basis for rejecting the argument that the conduct was related to gender. In this case however despite rejecting Ms Ward’s version of events and essentially accepting Mr Raj’s the Tribunal seem to have perhaps lost sympathy for Mr Raj in circumstances where they also rejected his race discrimination claim and found that the context included a history of attendance and performance failings on his part.  The precise circumstances in which the burden of proof will shift in a discrimination or harassment case are always difficult to predict but, despite the outcome in this case, employers would probably be well advised to discourage on site massage in the context of an employment relationship.

Eric Gilligan, Partner

Chambers Leading Firm 2019

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