Case Study: Is shoulder massaging sexual harassment?

Did a manager’s massaging of an employee’s shoulders constitute sexual harassment?

No, held the Employment Appeal Tribunal in Raj v Capita Business Services Limited

FACTS: Mr Raj was employed by Capita Business Services Limited (CBS) as a customer service agent. When he was dismissed, with under a year’s continuous service, he brought claims of sexual harassment under the Equality Act 2010, alleging that on several occasions, while he sat at his desk his manager, who was female, stood behind him and gave him a shoulder, neck and back massage. He claimed that this was:

• unwanted conduct ‘related to sex’, a protected characteristic, which is prohibited conduct under the Equality Act where the conduct has the purpose or effect of –
  • violating B’s dignity, or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for B; and
• unwanted conduct ‘of a sexual nature’, which is prohibited conduct under the Equality Act were both:
  • A engages in unwanted conduct of a sexual nature, and
  • the conduct has the purpose or effect of either violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

HELD: The employment tribunal rejected the harassment claims. Although it found that the conduct was unwanted and that it had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for Mr Raj, it concluded that the conduct was not related to sex, nor of a sexual nature. Although Mr Raj’s manager had tried to argue that she had done no more than tap Mr Raj’s shoulders on one occasion, the employment tribunal found that the evidence established that there was a contact of a massage type lasting two or three minutes, which was long enough to make Mr Raj feel uncomfortable. However, there was little evidence that the purpose behind it was a link to Mr Raj’s sex. Instead, the tribunal concluded that the purpose of the manager’s conduct was ‘misguided encouragement’ accompanied by words of praise for an underperforming employee. The tribunal took into account the fact that the contact was with a gender-neutral part of the body, it had taken place in an open-plan office and the manager had not behaved in a comparable way to any other employee, male or female. Although the conduct was unwise and uncomfortable, it was not harassment as prohibited under the Equality Act. Mr Raj appealed to the Employment Appeal Tribunal but the employment tribunal’s decision was upheld.

Comment: It is easy to assume in the age of #MeToo that any unwanted physical contact between a manager and a junior employee would amount to sexual harassment. However, this decision highlights:

• how each case turns on its own facts. For example, the outcome may have been different if the manager had been male and the junior employee had been female; and
• how important it is for a claimant to satisfy all aspects of the legal definition to succeed in a claim for sexual harassment.

That said, it is clear that the decision does not encourage or condone any physical contact in the workplace. Employers should ensure that their anti-harassment policy and training explain this so as to avoid any potential misunderstandings.

If you have any queries about this case study or about sexual conduct in the workplace contact our employment solicitors either by email or by calling 0161 832 2500.