Is a shoulder massage in the office unlawful sexual harassment?

Not according to the facts of this case.

The Employment Appeal Tribunal (EAT) in the recent case of Raj v Capita Business Services Ltd and Anor (Capita) has upheld a tribunal’s decision that a female manager massaging a male employee’s shoulders in an open plan office was not harassment ‘related to sex’ for the purpose of a sexual harassment claim.

On a first glance, this decision may sound somewhat surprising. However, on a more detailed look at the rationale behind the decision, it becomes clear that this case is more of a lesson in the intricacies of the law on the burden of proof in discrimination cases generally, rather than setting any kind of precedent that massaging a co-worker’s shoulders is appropriate workplace conduct.

How does the law define unlawful harassment?

The law relating to unlawful harassment in the workplace is set out in the Equality Act 2010 (the Act) which defines unlawful harassment as “unwanted conduct” which is related to a protected characteristic (such as sex or gender) and which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

For a tribunal to decide whether the unwanted conduct has the effect referred to above on the individual, it will consider the following:

• the perception of the individual
• the circumstances of the case
• whether it is reasonable for the conduct to have the effect.

So, it is both a subjective test (i.e. what effect did it have on the individual) and an objective one (was it reasonable for the conduct to have that effect).

In order to establish harassment, the law sets out a two-stage test: the claimant must first prove that, in the absence of an adequate explanation to the contrary, the respondent has committed the unlawful act of discrimination.

Then, if (and only if) the claimant gets over stage one, the burden of proof then shifts to the respondent to prove that he did not commit the unlawful act (in other words, that there was some non-discriminatory reason for what happened).

Mr Raj was employed by Capita as a customer service agent from autumn 2016 until he was dismissed on 8 August 2017. He brought discrimination claims against Capita including for unlawful harassment.

Mr Raj’s claim of unlawful harassment centred on his claim that his team leader, Ms Ward, had massaged his shoulders, neck and back on several occasions while he was at his desk and that this unwanted conduct constituted unlawful harassment either related to his sex or of a sexual nature.

The tribunal’s decision

The tribunal dismissed the sexual and sex-related harassment claims, finding that, whilst Ms Ward’s conduct was unwanted, and even though it had the effect of creating an intimidating, hostile, degrading, humiliating, or offensive environment for Mr Raj, the conduct was not sexual in nature, nor was it related to sex, and could not therefore amount to harassment.

In reaching this decision, the tribunal was satisfied that Mr Raj had established that there was massage-type contact lasting two or three minutes, which was long enough to make him feel uncomfortable. However, the tribunal noted that the evidence that linked the contact with Mr Raj’s sex was limited. There was no evidence of Ms Ward behaving in a similar way to anyone else, male or female.

The tribunal concluded that the conduct was simply ‘misguided encouragement’ by a manager to a ‘gender neutral’ part of the body in an open-plan office. Although the conduct was unwise and uncomfortable, it was not harassment.

Mr Raj appealed. He argued, among other things, that the tribunal failed to apply the proper test on the shifting burden of proof.

The EAT’s decision

The EAT accepted that the tribunal’s reasons made no express reference to the burden of proof provisions contained in the Act.

However, the tribunal had correctly asked whether there were facts from which it could conclude that the unwanted conduct related to Mr Raj’s sex; and had lawfully determined that there were not. The burden of proof was not overcome simply because Mr Raj satisfied the other requirements, or from the tribunal rejecting part of Ms Ward’s account.

In any event, the tribunal found that Capita had proved the reason for the unwanted conduct was misguided encouragement by Ms Ward and had therefore been satisfied that they had shown the conduct in question was unrelated to Mr Raj’s sex.

As such, the appeal was dismissed.

What does this mean for schools?

Whilst on one level this case provides us with food for thought about the rights or wrongs of the outcome, it is above all a thought-provoking and, perhaps, alarming illustration of the fine line between winning and losing a discrimination case.

It highlights the importance of schools having in place robust policies, procedures and training for all staff which fosters a culture where discrimination is not tolerated and that everything possible is done to protect the dignity of employees. Staff should also be aware of appropriate boundaries surrounding physical contact. This is likely to be particularly important for those working in sports, dance and drama settings where physical contact is more commonplace.

As an employer, if schools can demonstrate having taken “all reasonable steps to prevent discrimination” in the workplace, they may have a defence to a claim for discrimination or harassment. Although this defence is a high hurdle to overcome and will not always succeed, the existence of robust policies and a culture which embraces dignity and inclusion can only help to reduce the likelihood of discrimination claims arising.

Schools should consider reviewing their policies and procedures to ensure they adequately seek to prevent discrimination in the workplace and maintain dignity at work.