In Raj v Capita Business Services Ltd, an ET found that R had been subjected to unwanted physical contact by his female team leader, Ms Ward, when she massaged his shoulders on two or three occasions in the open plan office where he worked. The ET decided that while this had the effect specified in the definition of harassment under S.26(1)(b)(ii) of the Equality Act 2010, i.e. creating an intimidating, hostile, degrading, humiliating or offensive environment for R, W’s conduct was not related to R’s sex and therefore R’s sexual harassment claim failed. The EAT rejected R’s appeal. The ET had asked the correct “Stage One” question in the burden of proof test, i.e. could it conclude from the facts that the unwanted conduct related to R’s sex? and it had lawfully determined that it had not. The physical contact took place within the context of concerns about R’s performance, W had perceived the need to encourage R to perform to the best of his ability, the incidents had occurred in an open plan office with colleagues nearby and the contact was accompanied by W saying, “Well done,” or giving praise.

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