Harassment has been in the legal news again this month. Person A harasses Person B if Person A does something in relation to a protected characteristic (race, sex etc) which has the purpose or effect of violating Person B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for Person B.
The connection between the protected characteristic and the conduct is key. The burden of proof – who must prove what - is important in discrimination cases too. If an employee can prove facts from which, in the absence of another explanation, a tribunal could conclude harassment has occurred, then the burden of proof shifts to the employer to show that it did not happen. The Employment Appeal Tribunal (EAT) has looked at both these issues in Raj v Capita Business Services.
The employee was employed for less than a year and had performance issues before he was dismissed. He brought numerous claims against the employer. One claim was for sex harassment, alleging that his female manager had massaged his shoulders in an open plan office. The manager denied that the conduct had taken place, but other witnesses supported the employee's version of events. They said the massages were accompanied by words of encouragement in relation to the employee's performance.
An employment tribunal found that the massages were unwanted conduct which created an offensive environment for the employee. The tribunal accepted that the manager's massage was misguided encouragement rather than anything to do with the employee's sex. Even though in this case, the manager's evidence about the massages was rejected, this did not automatically shift the burden of proof to the employer. The Employment Appeal Tribunal agreed. The burden of proof had not shifted because the facts did not show sex harassment. Even if the burden of disproving harassment had shifted to the employer, there was an explanation which did not relate to sex – misguided encouragement.
In this case, the employer seems to have dodged a bullet but learned a lesson. The tribunal referred to the massages as 'an inappropriate way for a team leader to behave in an office'. Such behaviour in the office is almost certainly going to be inappropriate, even if it is not discriminatory. Employers should ensure equal opportunities policies are clear on expected behaviour.
