Alan McCormack | Senior Associate

Does a massage constitute harassment in the workplace?

A Claimant recently appealed to the Employment Appeal Tribunal (“EAT”) in the case of Raj v. Capita Business Services, following his unsuccessful claim to the Employment Tribunal that his female manager’s actions of massaging his shoulders in an open office constituted harassment.

Raj claimed that this conduct constituted harassment, and created an offensive and humiliating environment.  However, in circumstances where it was found that the manager’s actions were not related to the Claimant’s gender, and rather was “misguided encouragement”, his harassment claim failed.

Therefore, while the Claimant had established that this was unwanted conduct producing an offensive environment for him, he would have to relate this to a “protected characteristic”.  His failure to prove that this conduct related to his gender, led the claim to fail.  The Claimant was therefore regarded to have met stage one of the legal test, however, the burden of proof would only be shifted if it was shown that the conduct in question was related to the Claimant’s sex.  The EAT found that the Tribunal had not erred in law by accepting the manager’s evidence, that there was a non-discriminatory reason for the conduct, and therefore Raj’s appeal failed.

Should you be an employer or employee requiring advice regarding harassment or any other type of discrimination claim, please get in touch with our specialist team today.

Alan McCormack

Alan McCormack

Employment Law Team

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