An important part of legal test in harassment cases is showing that the conduct complained of had the purpose or effect of violating the claimant’s dignity or creating a work environment which is intimidating, hostile or offensive. However, in order for the claim to succeed, a Tribunal would also need to find that the conduct that took place was related to a protected characteristic.
The recent case of Raj v Capita Business Services emphasises the importance of satisfying both parts of this test. The Claimant was dismissed during his probation period on the basis of his performance. Although the employee did not have the required service to raise a claim for ordinary unfair dismissal, he did raise a claim for sexual harassment or harassment relating to his sex. He claimed that his female team leader massaged his shoulders on numerous occasions in an open plan office.
The Tribunal found that was unwanted conduct which created an offensive environment for him. However, the Employment Tribunal dismissed the harassment claim on the basis that it had failed to meet the second part of the test.
Unusually, the Employment Tribunal in this case did not shift the burden of proof at this stage to the Respondent. The Tribunal was satisfied in concluding that harassment did not take place as the unwanted conduct was not based on the Claimant’s sex and it was not conduct of a sexual nature. With regards to whether the conduct was linked to his sex, it found that there was no evidence of the manager behaving in this way with anyone else and therefore they had to consider conduct in isolation. Instead, it accepted the Respondent’s argument that the manager’s actions were based on misguided encouragement. The Employment Appeal Tribunal upheld the decision.
This decision provides some useful guidance on the test in sexual harassment claims. However, it is worth noting that the Tribunal did find that the conduct of the manager made the Claimant feel uncomfortable and that it was unwise. Employers should therefore be encouraged to clarify that inappropriate physical contact of any kind should not take place in the workplace and employees should be given an opportunity to report through internal processes.
If you have any questions on what behaviour may constitute harassment or how best to word your policies to adequately address physical contact in the workplace, get in touch with your dedicated employment solicitor today.