Male manager repeatedly massages shoulders of seated female subordinate in open office causing her distress and embarrassment, claims he is doing so to “encourage her” and then gives evidence denying it which the Tribunal does not swallow for a second. Sexual harassment? Quick, yes or no?

Well obviously it is, except, as it happens, not necessarily. Raj –v– Capita Business Services Limited and Ward concerned very much those facts but the Employment Tribunal and then the EAT both concluded this month that there had been no sexual harassment. How so?

It was quickly found that Ward’s massaging of Raj’s shoulders had been unwelcome and had caused distress and embarrassment. Two of the main components of harassment under section 26 Equality Act 2010 were therefore made out. However, there is a third – that the unwanted conduct causing distress is related to the employee’s sex. So was it? Other than that Raj and Ward were of different genders, there was not much for the Tribunal to go on. Ward had not massaged anyone else in the team, male or female. There was no sexually-specific language to accompany the contact and Ward swore blind that it had been by way of “encouragement” to Raj after some issues with the latter’s attendance and performance. Ward said that Raj had not only not objected but had actively acquiesced in it. In addition, the Tribunal found that Raj’s shoulders were a “gender neutral” part of the body and not an area of particular intimacy or sexual sensitivity. Therefore, said Ward and Capita, the contact may have been clumsy and ill-advised, but it did not relate to Raj’s sex.

Raj disagreed – Ward had told the Tribunal that the contact had been but a brief tap on the shoulders, and since that had been disbelieved, the Tribunal should draw an inference from Ward’s misleading evidence that the conduct had in fact been on gender grounds. In other words, that the conduct found plus its undisputed impact on Raj plus that rejected evidence should be enough to push on to the Respondents the burden of showing that Ward’s conduct was not related to Raj’s gender.

The ET and EAT wrestled with the question of what should be taken, if anything, from the rejection of Ward’s evidence. They concluded that it was permissible but not necessary to go from there to the adverse inference against the Respondents which Raj sought. They noted that Raj’s evidence had been rejected in parts also, in particular the suggestion that Ward’s hands had been “run up and down” Raj’s back, and also the entirety of a parallel race discrimination claim by Raj which the Tribunal had described as “baseless” and something which suggested that Raj was someone who would “see things that are not there”. It could not be fair that these “failures of recollection” (as the Tribunal euphemistically described them) were held against the Respondents when there were clearly a number of issues with the reliability of Raj’s evidence too. Overall, the EAT felt unable to disturb the Tribunal’s conclusion that Ward’s conduct indeed had been on the grounds of “misguided encouragement” rather than gender, and therefore Raj’s claim failed.

Lessons for employers

  • You can follow the legal logic here but it would be most unwise to rely on this case as creating any sort of authority that (a) massage has any real role to play in good performance management; or (b) there are “gender neutral” areas of your employee’s bodies which it is safe for you to play with.
  • If you face a harassment claim of this sort, then your evidence should be as straight and cogent as possible or you face a real risk of adverse inferences being drawn against you. Though it did not happen here, that was at least partly because Raj’s evidence was disbelieved in bulk also.
  • And who spotted the deliberate avoidance of pronouns? In this case, the massaging manager, Ward, was actually female and the victim Raj, male. It is impossible to avoid a suspicion that if those genders had been reversed, this case would have gone the other way. If Raj had been a woman, perhaps in a strappy top, and her manager Mr Ward had stood close behind her massaging her bare shoulders to her obvious and public embarrassment, is it really credible that she would not have succeeded?
  • But on a fractionally more positive note, the EAT’s willingness to separate managerial behaviour which is discriminatory from that which is merely “unwise and uncomfortable” does create some limited scope for the resolution of issues of this sort by profuse apology by the manager. There is no reference to this in the EAT’s judgment in this case because Ward denied the conduct in the first place. However, if you do suddenly catch yourself inadvertently massaging a colleague, an immediate and unprompted apology will go a long way to assuaging the employee’s upset and hence to taking the financial teeth out of any later Tribunal claim.