Hello and welcome back to your weekly case law update. Last week was our monthly employment law update which had features on Labour’s employment policies, the most recent IR35 tax judgments and a case about how virtual reality (VR) is being used to teach soft skills.
Prior to that, our last case law update concerned religion/philosophical belief discrimination and asked whether vegetarianism was a protected philosophical belief. This week we will be looking at harassment contrary to the Equality Act 2010.
As with mental health, the attitudes and social mores associated with harassment are changing. This not only applies to what we interpret harassment to mean but also how people are more prepared to report harassment.
In August’s employment law update we announced that Philip would be releasing a book on the matter to follow up his first book, A Practical Guide To Redundancy. A copy of this book will be made available at our next seminar, along with some other goodies. Harassment was also the subject of our recent presentation at the quarterly HR Networking session. To obtain copies of the slides, or, to attend a future session, click here.
Harassment is defined in Section 26 Equality Act 2010 as unwanted conduct related to a relevant protected characteristic that has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
As with all discrimination claims, harassment claims rely on the Claimant establishing a prima-facie case of harassment due to a protected characteristic. The burden of proof then shifts to the Respondent to provide a non-discriminatory explanation.
Today’s case asks the following question:
If conduct is unwanted and creates an offensive or humiliating environment, will it automatically be related to a protected characteristic?
Mr Raj, the Claimant, was employed by Capita Business Services Ltd, the Respondent, as a Customer Services Agent. His team leader was Mrs Ward. The Claimant was dismissed after around one year’s service for performance reasons.
The Claimant lodged an Employment Tribunal claim for harassment citing the protected characteristics of race, disability and sex as well as specifically suggesting the harassment relating to sex was sexual in nature. The Claimant was held not to be disabled so the disability related harassment claim failed. The Employment Tribunal held that the alleged racist remark was not made meaning the race related harassment claim also failed.
However, the Claimant also alleged his team leader Mrs Ward, would frequently stand behind him at his desk and massage his neck shoulders and back. He alleged this conduct was either related to his sex, because he was male and Mrs Ward was female, or, of a sexual nature.
Mrs Ward gave evidence that no such massages took place. The Employment Tribunal accepted the Claimant’s evidence that the messages did take place, the massages made him uncomfortable and that the massages were unwanted conduct. However, the ET also held that despite being unwanted, the conduct was neither related to the Claimant’s sex, or, of a sexual nature. The massages were a joke form of encouragement in line with the department’s humorous atmosphere. The ET relied on the Claimant’s other failed claims as the reason why the Claimant might have misinterpreted the conduct as harassment.
The Claimant appealed and the Employment Appeal Tribunal rejected the appeal. The EAT held the ET had been correct to find the unwanted conduct was not related to sex or of a sexual nature. In any event, even if the burden of proof had shifted, the ET had accepted a non-discriminatory reason for the massages – to encourage performance.
The takeaway points:
No, unwanted conduct that creates an intimidating atmosphere will not automatically be harassment if the conduct is not linked to a protected characteristic or of a sexual nature. Likewise, as discussed in our recent presentation, sexual conduct – including taking someone to a live sex show – will not amount to sexual harassment if it is not unwanted.
In this case however, the ET has made an interesting finding. The facts are not clear why the Claimant was the only person massaged by the team leader. However, this is clearly inappropriate conduct which may explain why the team leader was an evasive witness as she knew it was not befitting of her position.
Without wanting to sound like an incel misogynist asking when International Men’s Day is, would a male colleague massaging a female subordinate as a jokey form of encouragement that degraded the female subordinate be held to be not related to sex and/or of a sexual nature? In any event massaging any colleague, subordinate or otherwise, is ill advised!
This claim also highlights the risk Claimants take when they throw in every possible claim and hope some of the mud sticks. Focusing on litigation splatter gun tactics rarely works and undermines any best point. The ET here held that the Claimant’s other evidentially weak claims influenced their decision when finding the evidentially strong massaging claim was not related to sex. Had the Claimant here limited his case to just sex related/sexual harassment the claim might have had a different outcome.