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Can massaging in the workplace be harassment?

Partner, Paul Johnstone

The Employment Appeal Tribunal in the case of Raj v Capita Business Services Ltd has considered whether a manager giving an employee a massage could amount to harassment.

Background

The Claimant was employed by Capita Business Services Ltd (“Capita”) as a customer service agent. The Claimant alleged that during his employment his manager had stood behind him whilst he was seated and given him back and shoulder massages on multiple occasions and that this was unwanted conduct related to sex and of a sexual nature.

The Claimant brought a claim to the Employment Tribunal for harassment against both Capita and his manager.

The Law

Under section 26 of the Equality Act 2010, a person (“A”) harasses another (“B”) if A engages in unwanted conduct which is related to a protected characteristic that has the purpose or effect of either violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

A also harasses B if A engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect referred to above.

Decision

The Employment Tribunal dismissed the harassment claim. Although it found the conduct was unwanted, it did not consider it sexual in nature or related to sex. The Tribunal also found that the conduct did not have the effect of violating the Claimant’s dignity or creating an environment which was intimidating, hostile, degrading, humiliating or offensive for him. The Tribunal concluded instead that the intention behind the manager’s actions was ‘misguided encouragement’. The Claimant appealed to the Employment Appeal Tribunal (“EAT”).

The EAT agreed with the Tribunal’s decision and dismissed the appeal. The EAT considered the context of the massaging behaviour, it took place in an open plan office and was accompanied with praise. It held that this conduct was therefore not consistent with behaviour of a sexual nature and that there was limited evidence the behaviour related to the Claimant’s sex. However, the EAT did highlight that this was a difficult issue to decide on and that although the conduct did not amount to harassment, it was still unwise and uncomfortable.

Comment

This decision highlights the need for employers to ensure their employees have received the appropriate training on Equality Law in order to recognise situations like these and know how to deal with them.

Under section 109 (1) of the Equality Act 2010, an employer can be liable for discriminatory actions of its employees as long as the employee’s actions were done ‘in the course of their employment’. However, there is a potential defence available to an employer if they can show they have “taken all reasonable steps” to prevent employees from doing a discriminatory act. An example of inappropriate behaviour involving physical contact in the workplace is the ex-CEO of Ted Baker, who was forced to resign because of allegations of kissing employees’ ears and ‘forced hugging’. As a result of this, Ted Baker faced wide-scale backlash and the company has since had to completely overhaul their existing policies, retrain staff on acceptable workplace conduct and maintain a hotline for staff to raise complaints of harassment.

Collingwood Legal is running a Masterclass on ‘Essential Employment and Equality Law for Managers and Team Leaders’ on 20th November 2019 at Kingston Park Stadium. In this Masterclass, we will look at how to deal logically and successfully with difficult employee management issues and minimise the legal risks to organisations and individuals. You can read more about this Masterclass here.

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