An individual harasses another if they do something in relation to a protected characteristic (such as race, gender, etc.) which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, Read more...
An individual harasses another if they do something in relation to a protected characteristic (such as race, gender, etc.) which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The connection between the protected characteristic and the conduct is key. As is the burden of proof, which determines who must prove what. If an employee can prove facts from which, in the absence of another explanation, a tribunal could conclude harassment has occurred, then the burden of proof shifts to the employer to show that it did not happen. The Employment Appeal Tribunal (EAT) has looked at both of these issues in Raj v Capita Business Services.
The employee was employed for less than a year and had performance issues before he was dismissed. He brought forward numerous claims against his employer. One claim was for sex harassment, alleging that his female manager had massaged his shoulders in an open plan office. The manager denied that the conduct had taken place, but other witnesses supported the employee’s version of events. They said the massages were accompanied by words of encouragement in relation to the employee’s performance.
An employment tribunal found that the massages were unwanted conduct, which created an offensive environment for the employee. The tribunal also accepted that the manager’s massage was a form of misguided encouragement, as opposed to anything in relation to the employee’s sex. This explanation meant that although the manager’s evidence about the massages was rejected, the burden of proof had not shifted to them.
In this case, the employer seems to have dodged a bullet but learned a valuable lesson. The tribunal concluded the massages were ‘an inappropriate way for a team leader to behave in an office.’ Such behaviour in the office is almost certainly going to be inappropriate, even if is not intentionally discriminatory. Employers should ensure equal opportunities policies are clear on expected behaviour.