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Employment Appeal Tribunal holds that inappropriate behaviour to a colleague of the opposite sex will not necessarily constitute sexual harassment

In the Employment Appeal Tribunal (EAT) judgment of Mr Raj v (1) Capita Business Services Limited and (2) Ms Ward, the EAT held that a Claimant, whose female team leader massaged his shoulders at work, had not been subjected to sexual harassment.

In the first instance decision before Leeds Employment Tribunal the Claimant successfully showed that the Second Respondent's conduct had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, which is the first limb of the test in a harassment claim under the Equality Act 2010. However the Tribunal found that on balance, the evidence of the case did not lead them to find that the reason for the unwanted conduct was due to the Claimant’s sex as a male. Accordingly, the Tribunal dismissed the Claimant’s harassment claim.

The Claimant appealed on the grounds that the Claimant had in their opinion established a prima facie case of sexual harassment and the Employment Tribunal had erred in law by failing to then shift the burden of proof to the Respondents to prove the reason for the unwanted contact was not connected to his sex.

The EAT concluded that the Employment Tribunal had correctly identified facts upon which they could lawfully determine that the unwanted conduct did not relate to the Claimant’s sex, and as such a prima facie case had not been established so as to shift the burden of proof to the Respondents to prove the reason for the unwanted contact. In any event, whilst the Employment Tribunal found that as “unwise and uncomfortable as the conduct was”, it accepted the reason put forward by the Respondents for the contact being “misguided encouragement”, and so the EAT dismissed the appeal.

Whilst this case goes to show that such conduct is inappropriate, it is not necessarily discriminatory and even when conduct may appear to be capable of being sexual in nature if there is no clear link to the sex of the alleged victim it cannot be said to be harassment for the purposes of the Equality Act 2010 . However, employers should still be wary as such conduct may still result in a successful constructive unfair dismissal claim if the person subjected to the treatment resigns in response to the conduct. Any suggestion of any such behaviour in the workplace should therefore be investigated and dealt with as soon as possible so as to reduce the potential of any future litigation.

For more information on this please contact Kirsten Currer and Simona Kalnina from the Employment Team.

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