In Raj V Capita Business Services and another, the Claimant alleged that on several occasions, while at his desk, the team leader, a woman, stood behind him and massaged his neck, shoulders and back. He brought, amongst other actions, a claim for harassment under the Equality Act.
The Employment Appeal Tribunal upheld the tribunal’s decision that while it was unwanted conduct which had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment (the first part of the test under the Act), it was neither related to sex or sexual in nature and therefore not harassment for the purposes of a claim. In reaching its conclusion, the tribunal noted that the evidence base for a link to the Claimant’s sex was limited. There was no evidence of the manager behaving in a similar way to anyone else, male or female. It concluded that the purpose behind the conduct was misguided encouragement. The context was a standing manager over a sitting team member, and the contact was with a ‘gender-neutral’ part of the body in an open-plan office.
The decision is somewhat surprising. The emphasis placed on there being no evidence of it happening to other employees, male or female, seems to ignore the use of a hypothetical comparator, provided for under the legislation. The question may be asked as to whether the outcome would have been the same had it been a male manager massaging a female employee at her desk. In general, employers need to be mindful of any unwanted behaviour amongst staff and the need to take action, either informal or formal, at an early stage. It is also very important to have training for managers on anti-harassment and bullying policies, with a view to preventing this type of behaviour in the first place.