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Shoulder massage results in sexual harassment claim

November 22, 2019
Employment Law

Where we all draw the line between what is acceptable in the workplace and what is not can, at times, be quite different. So, it was interesting to note the way in which the Employment Appeal Tribunal dealt with a recent case in which the claimant objected to being given a shoulder massage by his line manager.  Did the line manager’s conduct amount to unlawful harassment?

Raj v Capita Business Services - the facts

Mr Raj worked for Capita.  It was common ground that in the course of his employment, on two or three occasions, Ms Ward (Mr Raj’s team leader) had given him a shoulder massage lasting a few minutes.  Mr Raj and his team leader were in an open plan office environment at the time of the incidents.  He objected to the treatment and subsequently brought a sexual harassment claim against both Capita and Ms Ward.  The question arose as to whether Ms Ward’s conduct amounted to unlawful harassment.

The decision

It was accepted at the Employment Tribunal hearing that the massage amounted to unwanted conduct which had resulted in an ‘offensive’ working environment for Mr Raj.  However, this in itself wasn’t enough for his claim to succeed.  The Employment Tribunal also had to be satisfied that the conduct related to a ‘protected characteristic’ (i.e. race, disability, sexual orientation etc).  In this case, the ‘protected characteristic’ was the claimant’s gender.  So, Mr Raj needed to convince the ET that his line manager’s conduct was of a sexual nature or otherwise related to his sex.  However, the ET concluded that Ms Ward’s decision to massage Mr Raj’s shoulders had nothing to do with his gender; instead, she was trying to encourage him to improve his performance and the massage was coupled with relevant verbal praise.

Both the Employment Tribunal and the Employment Appeal Tribunal concluded that Mr Raj’s claim failed to clear the second hurdle and therefore his sexual harassment claim was dismissed.  

All or nothing?

This case is a useful reminder of the need for claimants to tick all necessary legal boxes in order to succeed with their claims.  It also reminds us that the reason for or the intentions behind a person’s behaviour can be just as important as the nature of the behaviour itself.

Need our help?

We have had considerable experience over recent years of defending businesses and individuals against claims for race, sex and religious discrimination and harassment.  We also regularly advise businesses on all aspects of equality and diversity law.  If you need assistance with a matter of this nature, please get in touch.

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