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Harassment or encouragement?

By Jack Khurana

Senior Associate Solicitor

FG Solicitors

HARDLY a day goes by without another high-profile scandal with unsavoury allegations of sexual discrimination or harassment.

Not even our esteemed Prime Minister can escape the scandal of the alleged ‘under the table thigh squeeze’.

There have been many cases of alleged sexual misconduct and harassment in the workplace so it’s a brave employment tribunal that flies in the face of the current climate and concludes that sexual harassment has not been proven.

This was so in the recently reported case of Raj -v- Capita BS. Raj was employed as a customer service agent, whose employment was terminated during the probationary period. Raj complained of sexual harassment against Ward, the line manager, who had on several occasions, in an open plan office, stood behind and massaged Raj’s shoulders, neck and back.

Raj argued, in accordance with the wording of the relevant legislation, that this was unwanted conduct either of a sexual nature or related to Raj’s sex within s.26 of the Equality Act 2010.

Having heard the evidence the employment tribunal rejected the claim for sexual harassment and found that although Raj had proven physical contact – massages lasting for two or three minutes, long enough to make Raj feel uncomfortable, and that this had the effect of creating an intimidating, hostile, degrading humiliating or offensive environment. However, the tribunal concluded that the unwanted massage was not conduct of a sexual nature.

Rather, the tribunal concluded, the reason for the massages was misguided encouragement. Contextually, this was a manager standing over a sitting team member. The area of contact, the tribunal concluded, was with a gender neutral part of the body, albeit in plain sight of other employees in the open plan office. Yes the actions were unwise and uncomfortable, but not sexual harassment.

On appeal, the Employment Appeal Tribunal upheld the decision on the basis that the tribunal was entitled to find that while the conduct was unwanted, it wasn’t sexual in nature or related to Raj’s gender.

Arguably, when a man stands behind a woman and massages her back, neck and shoulders in the privacy of their own home, with consent, that is acceptable.

Equally, it’s been argued that, in the workplace, when the woman does not invite such attention, it’s clearly harassment to massage her shoulders, neck and massage.

It may be natural to assume that Raj is female and Ward is male. But that assumption would be wrong in this case. Here the attention and massages were uninvited by Mr Raj – he didn’t ask his female team leader Ms Ward to massage his back neck and shoulders, but when she did, the tribunal concluded on the facts and evidence before it, that she was encouraging him to improve his performance.

Commentators speculate that had the gender roles been reversed, would Mr Raj’s actions in ‘encouraging’ Ms Ward with unwanted massages on her neck back and shoulders have been construed as of a sexual nature or related to Ms Ward’s sex?

Employers should always bear in mind that all cases and decisions are fact specific. We at FG Solicitors are experts in all areas of employment law and HR and we can guide your business through the minefield of discrimination laws and ensure that you are properly protected against claims like this one.

Call FG Solicitors on 0808 172 9322 for a no obligation discussion.

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