Massaging an employee's shoulders did not amount to harassment under s.26 of the Equality Act 2010, EAT decides

In the recent case of Raj v Capita Business Services Ltd, the Employment Appeal Tribunal dismissed an employee's claim that he had suffered harassment under s.26 of the Equality Act 2010.

Mr Raj claimed that his female manager had massaged his shoulders, neck and back for two to three minutes on more than one occasion while he was sat at his desk.  Mr Raj brought claims following his dismissal in 2017 to include harassment and sought to rely on the provisions of s.26 of the Equality Act 2010.  Essentially s.26 is split into two areas, both of which must be satisfied for a claim to succeed.  Harassment occurs under the Equality Act 2010 when there is (1) unwanted conduct either related to a protected characteristic, of a sexual nature or related to sex which (2) has the purpose or effect of violating someone's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.  Mr Raj claimed that his manager had subjected him to unwanted conduct of a sexual nature or relating to sex.  Mr Raj's manager claimed that she had once tapped his shoulders and nothing more.

Mr Raj's claim failed in the Employment Tribunal.  It was found that, although the conduct did go so far as to create an intimidating, hostile, degrading, humiliating or offensive environment for Mr Raj, and was indeed unwanted conduct, it did not amount to conduct of a sexual nature and was not related to sex.  The evidence available to connect the conduct to sex was inadequate on the basis that (a) the massage was in a gender-neutral area in an open plan office; and (b) the manager had not subjected any other employees to this conduct, whether female or male, and there was thus no comparator.  While the ET rejected the manager's version of events and stated that they were "inconsistent with the weight of the other evidence, and inherently unlikely in her elaboration of it", it was found that the Respondent had sufficiently proven that the conduct was merely "misguided encouragement" and did not relate to sex.  Therefore, while the conduct was unwanted and uncomfortable for Mr Raj, it was not harassment under s.26.

Mr Raj appealed to the EAT.  He claimed in his submissions that the ET had failed to shift the burden of proof to the Respondent under s.136 of the Equality Act 2010 and had made no express reference to the provision.  The burden of proof initially fell to Mr Raj, who had to establish the facts and show that, in the absence of adequate explanation and on the balance of probabilities, the Respondent had committed the harassment.  The Respondent would then be held liable unless they could shift the burden of proof under s.136 by establishing that they did not harass Mr Raj. 

Mr Raj sought to rely on the judgment in the case of Birmingham City Council v Millwood (2012), where it was held that discrimination could be inferred where the Respondent had given an untrue version of events.  However, the EAT held that the Millwood case did not establish a rule of law and the burden of proof will not always shift where it is established that the Respondent has been untruthful.  Therefore, even though the manager in this case had been found to have given a false account, it was not sufficient enough to shift the burden. 

In Madarassy v Nomura International (2007), Mummery LJ gave a leading judgment where it was stated that "the burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim."  In this case, the EAT stated at paragraph 67 of their judgment that "the ET was saying that, even if the burden had shifted, albeit their view was that the evidence base was limited, if the Respondents were required to prove a non-discriminatory explanation for the conduct, then they had done so, because it was misguided encouragement, rather than anything related to the Claimant's gender." 

The tribunal had concluded that the conduct was an isolated incident and that there were no other employees which Mr Raj could be compared with. It was therefore found that the burden had not shifted and, even if it had been, it was discharged by the Respondent in their explanation of the conduct.  Mr Raj's appeal was dismissed on the basis that the conduct could not be proven to be related to sex.

This is an interesting case and shows that not every claim of unwanted conduct amounts to harassment under the Equality Act 2010.  Each element of the legislation must be proven for a claim to succeed and, in this case, despite the fact that Mr Raj had been made to feel uncomfortable and his manager had created an environment which was intimidating, hostile, degrading, humiliating and offensive in accordance with the provisions, it was still not enough to amount to harassment under s.26.  Employers should however be extremely cautious when subjecting their employees to potentially unwanted conduct and should be mindful that if the claimant can prove that their employer had committed the act, then it will be upheld unless they can prove otherwise.