The Employment Appeal Tribunal has upheld a ruling that unwanted physical contact in the form of a shoulder massage by the claimant’s line manager did not amount to sex-related harassment. While the claim did not succeed, it serves as a warning about the legal risks associated with any kind of physical contact in the workplace, even when it is not of an overtly sexual or hostile nature.
Harassment is defined as unwanted conduct which has the purpose or effect of violating a worker’s dignity or creating an “intimidating, hostile, degrading, humiliating or offensive environment” for that worker. The Equality Act does not make any kind of harassment unlawful, but only harassment which is “related” to a “relevant” protected characteristic (ie any of them except for marriage/civil partnership and pregnancy/maternity). Where the relevant protected characteristic is sex, an alternative definition comes into play where the conduct is of a sexual nature, but in this case there was no appeal from the employment tribunal’s decision that the conduct in question had not been sexual.
The claimant had been given a brief shoulder massage on 2-3 occasions by his female line manager, while he was sitting at his desk in an open plan office. The claimant established that it was unwanted conduct, and although it did not have the purpose of creating an intimidating or hostile environment for him, it had that effect. However on the balance of the evidence the tribunal concluded that it was not related to his sex.
The EAT has confirmed that this was a decision the employment tribunal was entitled to reach; it had been entitled to take into account the employer’s evidence that the massages were undertaken by way of “misguided encouragement”. The EAT pointed out that there must be cases, like this one, where establishing unwanted conduct which had the prohibited effect does not give rise to a prima facie case that the conduct was related to a protected characteristic.
Reading the decision as a whole, the reasons why the EAT has upheld the employment tribunal’s decision are understandable. Its careful analysis of the tribunal’s thought process emphasises the importance of the examining the precise context in which the conduct occurred. That means there could be occasions where a similar massage delivered in an open plan office would be considered to be sexual harassment. In short, managers would be best advised to avoid this kind of physical conduct with their staff in all circumstances.