What constitutes sexual harassment?

Background

In 2016, Mr Raj started working for the first Respondent, Capita Business Services Limited, as a Customer Service Agent.

On 8 August 2017, Mr Raj was dismissed, following a number of meetings in which his performance was considered. He brought a number of complaints, including direct race discrimination, disability discrimination, sexual harassment and breach of contract; the latter of which related to being allocated a 3pm to 11pm shift, when Mr Raj was contractually entitled to work 9am to 5:30pm.

Mr Raj alleged that on 5 different occasions Ms Ward, his manager, had come up to his desk and given him a massage for two to three minutes, feeling his shoulders, neck and back. These incidents took place in an open plan office surrounded by other colleagues. This was unwanted contact and Mr Raj argued that it amounted to sexual harassment under the Equality Act 2010. Harassment is defined under section 26 of the Equality Act as unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Employment Tribunal

The Employment Tribunal found that the conduct had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. The layout of the office was key when weighing up the evidence submitted to the Employment Tribunal, as it could be corroborated with the accounts of colleagues present during the incidents. Section 136 of the Equality Act 2010 concerns the burden of proof in discrimination claims.  Firstly, the complainant is required to provide facts from which the Employment Tribunal could conclude, in absence of an adequate explanation, that the Respondent has unlawfully discriminated against the complainant.  The burden of proof is then shifted onto the Respondent to prove that it did not commit or is not to be treated as unlawfully discriminating against the Claimant.

The Employment Tribunal accepted that the contact was as a result of misguided encouragement on Ms Ward’s behalf. The context of the alleged massaging incidents were not consistent with sexual behaviour, as they were in an open plan office and accompanied by praise. The allegation that Ms Ward felt Mr Raj’s neck, shoulders and back was rejected and, from the evidence put forward, the Tribunal concluded that the contact was limited. As such, Mr Raj did not satisfy s.26(2)(a), as the conduct was unrelated to Mr Raj’s sex. This was the case even despite the Employment Tribunal rejecting large parts of Ms Ward’s evidence, including submissions that Mr Raj encouraged such behaviour; they went as far as to say that her account was “inconsistent with the weight of the other evidence, and inherently unlikely in her elaboration of it”.

As a result, Mr Raj was unable to satisfy stage 1 of the test set out in section 136, in which you have to establish a prima facie case that the unwanted conduct related to a protected characteristic. However, the Employment Tribunal did not make any express findings as to whether the burden of proof had, or should have, shifted.

The Employment Tribunal dismissed all claims, except the breach of contract claim in which Mr Raj was successful against Capital Business Services Limited, and was awarded a sum of £2,392.50.

Mr Raj appealed this decision on the basis that the burden of proof would have shifted to the Respondents.

Employment Appeal Tribunal

The EAT held that, whilst the Employment Tribunal could have been more clear in its conclusions, it had not erred in law, as case law indicates that the burden of proof would not always shift when aspects of the Respondent’s evidence are rejected by the Tribunal. Mr Raj was still required to provide evidence to the Tribunal that creates a prima facie presumption that the conduct was related to a protected characteristic. A prima facie case was not established through Mr Raj satisfying other elements of the cause of action or from the Tribunal’s rejection of part of Ms Ward’s evidence. Mr Raj’s evidence in this regard was rejected by the Tribunal.

The appeal was accordingly dismissed.

Comments

This case highlights the importance of satisfying every aspect of a legal definition in order to succeed with a claim of sexual harassment and shows how fact-specific a decision can be. It is also a warning to all employees to be mindful when engaging in physical contact within the workplace and raises awareness of this issue.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.