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In a harassment case considered by the Employment Appeals Tribunal recently, the appeal judge looked at whether what happened was harassment or just misguided?

In the case of Raj v Capita Business Services the (female) manager massaged the shoulders of her (male) direct report. There was no dispute about whether this created an offensive environment for him to work in – it was accepted that it did. The massaging was done in front of his fellow workers and was unwanted conduct.

In employment law, a case for harassment starts with the conduct in question being unwanted.

Next, we consider whether it created an offensive, intimidating, hostile, degrading or humiliating environment or violates the recipient’s dignity. Examples of harassment might be picking on or undermining someone, lack of promotion or other opportunities, or spreading malicious rumours about someone. It can be face to face, or by email, letter, phone etc.

In a second stage of the test we then look at whether the conduct was related to a characteristic that is protected under the Equality Act. The usual characteristics considered in harassment cases are age, sex, race, nationality, religion or belief, disability. Sometimes we also get maternity/pregnancy, sexual orientation, and marriage and civil partnership considered in this context. Basically, all of the characteristics protected under the Equality Act.

In this case, the shoulder massaging was not found to be harassment. The tribunal accepted that the conduct was unwanted and produced an offensive environment. But the tribunal also found that the reason for the conduct was misguided encouragement and was not related to a protected characteristic – in this case sex. Therefore, the claim for harassment failed.

There is no rigid rule that if one part of the definition of harassment is met, the other part follows automatically. Both parts of the rule have to be present in a case for harassment; namely that it is

1) unwanted conduct that produces an offensive, intimidating, hostile degrading or humiliating environment and

2) that it is conduct that occurs because of a protected characteristic.

The tribunal’s decision, in this case, was appealed, and the appeal failed. This is, therefore, a good example of what harassment is not – and what it could potentially be.

If you are in doubt about a situation that you think could be harassment, give us a call and we will see how we can assist.


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