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Female manager massaging male’s shoulders not harassment as not related to sex

Makbool Javaid

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.

The updates are kindly provided by Simons Muirhead & Burton Law firm

This update provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and help judgments made in every aspect of the case. Click on the links to access full details. If no link is provided, contact us for more information.  Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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