R (a male) was employed by CBS. W (a female) was R’s team leader.
R alleged that on several occasions when he was sitting at his desk, W had stood behind him and given him a massage by feeling his shoulders, neck and back. He argued that this amounted to unwanted conduct, either of a sexual nature, or unwanted conduct relating to his sex, both within the meaning of s26 Equality Act 2010 (“EQA”).
In her defence W alleged she had done no more than tap R on his shoulders.
The Tribunal Proceedings
In its findings the Tribunal concluded that R had proven physical contact, a brief massage type contact, however it was unlikely to have lasted for more than two to three minutes, but long enough to make R feel uncomfortable.
The Tribunal also went onto to conclude that the purpose of W’s contact with R was “encouragement”. It said:
“…we consider that the context and behaviour we have found (open plan office, said in a jokey way, accompanied by a “well done” or praise and so on) are not consistent with sexual behaviour, and we reject this characterisation of the conduct. We consider it inconceivable that if this has been reported as “sexual” conduct to Mr M at the time, the latter would have been clear and said so in his statement. We have rejected the elaboration of the conduct as running hands up and down the Claimant’s back, which could be sexual conduct on any view, but consider the contact was limited in the way we describe it. For these reasons, on the balance of the evidence, we have concluded that two or three occasions of massage type contact with the Claimant’s shoulders was not conduct of a sexual nature such as to satisfy section 26 [EQA].”
The Tribunal accepted R’s evidence that W’s conduct was unwanted, despite W asserting that R had encouraged it. As a result and, by reference to the EQA, the conduct had the effect of creating an intimidating, degrading, hostile or offensive environment for R.
The Tribunal then had to decide whether the unwanted conduct related to R’s gender. The Tribunal went on:
“We have found the purpose of contact was misguided encouragement; the context is a standing manager over a sitting team member; the contact was with a “gender neutral” part of the body in an open plan office.”
“Some physical contact at work is obviously harassment; other contact is more subtly so; and some is very difficult to assess. This case falls into the latter category.”
The Employment Appeal Tribunal (“EAT”)
Following a detailed analysis of the case law in this area, the EAT could not find anything substantively wrong with the Tribunal’s analysis, with the result the appeal by R was dismissed.
Comment
Given the ongoing public debate regarding sexual harassment in the workplace, one would be forgiven for assuming that massaging a colleague’s shoulders of the opposite sex was very likely to amount to sexual harassment, especially if it was unwanted. However, this case demonstrates just how fact sensitive these types of cases can be, and although an individual’s conduct may have been both inappropriate and unwise, it doesn’t necessarily constitute sexual harassment. Of course, a different Tribunal could easily have come to a different view! |
