Harassment related to sex and the burden of proof

14th October 2019

A female manager massaging a male employee’s shoulders in an open plan office was not harassment ‘related to sex’, the Employment Appeals Tribunal (EAT) has ruled, upholding the Employment Tribunal’s decision in Raj v Capita Business Services Ltd & Anor.


Focus on the burden of proof, not the massage


This decision may sound surprising, but, 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 than setting any kind of principle that massaging a co- worker’s shoulders will not amount to harassment related to sex. Plainly, in many cases, it could do so.

Mr Raj was employed by CBS Ltd as a customer service agent from autumn 2016 until he was dismissed in 2017. He brought claims of disability discrimination (failure to make reasonable adjustments), breach of contract, racial discrimination/harassment and sexual and/or sex-related harassment.

In relation to the sexual and/or sex-related harassment claim, Mr Raj alleged that on several occasions, while he was sat at his desk, his team leader, W (a woman), stood behind him and gave him a massage, feeling his shoulders, neck and back. He said that this was unwanted conduct either of a sexual nature or related to sex under section 26 Equality Act.


What is the law on this point?


Harassment related to sex


Section 26 of the Equality Act provides:

1) “A person (A) harasses another (B) if –
a) A engages in unwanted conduct related to a relevant protected characteristic, and
b) the conduct has the purpose or effect of –
i) violating B’s dignity, or
ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.


Burden of Proof


The law on the burden of proof in discrimination cases is contained in section 136 Equality Act as clarified by subsequent case law and involves the following two-stage test (known as the “shifting burden of proof”):

1. The claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the unlawful act of discrimination.

2. If (and only if) the claimant gets past 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).


What did the Employment Tribunal (ET) decide?


The ET dismissed all of the claims apart from the claim for breach of contract, which was upheld.

In rejecting the sexual and sex-related harassment claims, the ET found that, whilst the conduct was unwanted, and even though it had the effect of creating an intimidating, hostile, degrading, humiliating, or offensive environment for Mr Raj (satisfying the first part of the definition of harassment in section 26), it concluded that the conduct was not sexual in nature, nor was it related to sex.

In deciding that, the tribunal rejected W’s account that she had done no more than tap R’s shoulders on one occasion. It found that Mr Raj had established on the evidence 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 base for a link to Mr Raj’s sex was limited. There was no evidence of W behaving in a similar way to anyone else, male or female. The tribunal concluded that the purpose behind the conduct was ‘misguided encouragement’ in the context of issues with Mr Raj’s performance in the role.

The context was a standing manager over a sitting team member, and the contact was with a ‘gender neutral’ part of the body in an open-plan office. Although the conduct was unwise and uncomfortable, it was not harassment under section 26 Equality Act. Mr Raj appealed. He argued, among other things, that the tribunal failed to apply the proper test on the shifting burden of proof under section 136 Equality Act.


How did the EAT respond?


The EAT accepted that the ET’s reasons made no express reference to the burden of proof provisions contained in section 136 Equality Act 2010.
However, on careful analysis, it found that the ET had asked the correct “Stage One” question, namely whether there were facts from which the tribunal could conclude that the unwanted conduct related to the claimant’s sex; and had lawfully determined that there were not.

Stage One was not overcome simply by the claimant satisfying the other ingredients of the cause of action or from the tribunal’s rejection of part of W’s account. The authorities did not lay down a rule of law that the burden of proof would always shift where a tribunal rejected aspects of a respondent’s evidence as to what occurred.

In any event, the tribunal found the respondents had proved the reason for the unwanted conduct was misguided encouragement on the part of W and thus had been satisfied they had shown the conduct in question was unrelated to the claimant’s sex (thereby satisfying Stage Two of the test).

Accordingly, the ET had not erred in law and the appeal was dismissed.

Some of the intricacies of the EAT’s analysis give a little more insight into why they found as they did. Although the EAT noted that the ET had rejected W’s account that all she had done was to ‘tap Mr Raj on the shoulder on one occasion’, it commented that the obvious inference to draw from the fact that she had tried to play down the incident was because, with hindsight, she realised that it was an inappropriate way for a team leader to behave in an office.

The EAT said it could not see why, in that context, the ET’s rejection of that aspect of her evidence should be treated, as a matter of logic, as giving any support for the proposition that her conduct was related to the claimant’s gender.

The EAT also noted that this was not a case where the ET had comprehensively rejected the credibility of W’s account; indeed, there were some aspects of the case where the tribunal preferred W’s account to Mr Raj’s, most notably in relation to the race discrimination claim, in which the ET specifically observed that the claimant had “seen things that were not there”, in the sense that he had made what they described as “baseless allegations of race discrimination.”

Whilst on one level this case provides us with food for debate 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.


Top tips for employers


• Have robust policies and procedures to foster a culture in which discrimination is not tolerated and everything possible is done to protect the dignity of employees.

• Ensure that these policies are wide enough to allow you to take action against employees who behave in inappropriate ways, even if the behaviour may not satisfy the legal tests for discrimination.

• Run training for employees at all levels on appropriate workplace behaviour and empower managers to create a respectful environment.

• Employers who can demonstrate having taken all reasonable steps to prevent discrimination in the workplace may have a defence to a claim for discrimination or harassment. As well as preventing incidents, if the worst does happen, your preparation could help you defend a claim.

• If you would like advice or assistance in reviewing your policies or procedures or running employee training, please get in touch with Peter Orton at [email protected] or on 01242 266907.

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