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23 September 2019

Employment Appeal Tribunal holds that female manager massaging junior male employee’s shoulders not sexual harassment

In the age of #MeToo it is easy to assume that any unwanted physical contact between a manager and a junior employee would automatically amount to sexual harassment.  However, the EAT in Raj v Capita Business Services Ltd and anor upheld a tribunal decision that a female manager who had massaged a junior male employee’s shoulders was not engaging in conduct of a sexual nature or “related to sex” for the purpose of a sexual harassment claim.

The tribunal had found that the massage had taken place, and that for the purposes of the definition of sexual harassment the conduct was unwanted and had made Mr Raj feel uncomfortable, but decided the purpose behind it was not “related to sex”.  Instead, the manager’s actions were “the result of misguided encouragement” accompanied by words of praise to an underperforming employee.  The EAT took into account the fact that it had taken place in an open plan office, involved a “gender neutral” part of the body and the manager had not behaved in a comparable way to any other employee, male or female. 

Previous case law established that a tribunal must look at a range of factors to determine whether physical contact amounts to sexual harassment.  These include which part of the body was touched, the circumstances or context, the relationship between the individuals, whether the conduct is unwanted and whether this was made clear, the intention of the person who makes the contact, the perception of the recipient and how a reasonable person would view or perceive the conduct.  In one case, intentionally laying a hand on the front of a woman’s body amounted to conduct of a sexual nature whereas, in another, patting the lower back of a male colleague did not.  In the latter case, the tribunal held that the male employee was oversensitive and his colleague was an older woman who was trying to be supportive; she was tactile with everyone which was conduct unrelated to sex.

This decision highlights how very fact-specific each case is and how important it is for a claimant to satisfy all aspects of the legal definition in order to succeed in a claim for sexual harassment.   It does not, however, condone physical contact in the workplace and employers should ensure that any anti-harassment training and policy makes this clear to minimise potential misunderstandings.  A claim involving a male manager and a female junior in a similar scenario may well have resulted in a different outcome.

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