The Employment Appeal Tribunal has held that a female manager massaging a junior male employee’s shoulders did not constitute sexual harassment under the Equality Act 2010 as although it was unwanted and created an intimidating environment, it was not ‘related to sex’ or conduct of a sexual nature.
There are two main forms of sex harassment under the Equality Act 2010 (the “Equality Act”); one being harassment ‘related to sex’ and the other being harassment of a sexual nature. Both forms require the unwanted conduct to have the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The claimant was employed by Capita as a customer service agent. After being dismissed, the claimant brought a number of claims against Capita and his manager, including claims of harassment under the Equality Act. He alleged that his manager had massaged his shoulders, neck and back on several occasions and that this conduct was unwanted conduct of a sexual nature and unwanted conduct relating to his sex. His manager denied this, claiming that she only tapped the claimant’s shoulders once.
Despite supporting the claimant’s version of events, the Employment Tribunal rejected his claim. It was satisfied that there had been unwanted conduct which created an intimidating environment for the claimant, but did not accept that this conduct was of a sexual nature or related to sex. It concluded that the touching had been intended as ‘misguided encouragement’. The claimant appealed.
On appeal, the claimant argued that the burden of proof for harassment should have shifted to the respondent because there was unwanted conduct that created an intimidating environment, and the Employment Tribunal had rejected the respondent’s account. The Employment Appeal Tribunal disagreed. It held that a harassment case was not established simply by the claimant satisfying some of the necessary elements, nor was the burden of proof automatically shifted to the respondent because of the tribunal’s rejection of the respondent’s version of events. The Employment Appeal Tribunal held that in any event the Tribunal had found that the reason for the respondent’s conduct was ‘misguided encouragement’ and therefore unrelated to the claimant’s sex. The Employment Appeal Tribunal therefore dismissed the claimant’s appeal.
This case is an interesting example of unwanted conduct which created an intimidating environment, but did not constitute unlawful harassment, because critically the conduct was neither related to sex (or any other protected characteristic) nor of a sexual nature. Although on the facts of this particular case the unwanted conduct did not meet the threshold for harassment related to sex, employers would nevertheless benefit from having and implementing clear policies on employees’ (including managers’) conduct in the workplace.