25 September 2019
The law provides a remedy for employees who are subjected to harassment that is “related to” a protected characteristic (disability, sex, age, disability etc).
Harassment is unwanted conduct that has the purpose or effect (so it need not be intentional) of violating the victim’s dignity or creating “an intimidating, hostile, degrading, humiliating or offensive environment”. The Equality Act also specifically includes “unwanted conduct of a sexual nature”.
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It is not always easy to determine whether conduct “relates to” a protected characteristic, but harassment would include conduct that expressly refers to a protected characteristic as well as other conduct which, while less express, is carried out on the grounds of a protected characteristic and has the necessary effect.
In the recent case of Raj v Capita Business Services, the tribunal and Employment Appeal Tribunal (“EAT”) considered whether conduct could be said to be related to sex or of a sexual nature.
A female manager stood behind the seated male employee on 2 or 3 occasions. She massaged his neck for 2 or 3 minutes. The tribunal found that this was unwanted conduct and that it did create an intimidating, hostile, degrading, humiliating, or offensive environment. The tribunal rejected the manager’s denials in evidence that she had acted in that way
The tribunal, however, rejected the claim, concluding that the conduct was not related to sex or of a sexual nature. They described it as “misguided encouragement” and noted that contact was with a “gender neutral” part of the body, in an open plan office with colleagues nearby.
The EAT upheld the decision of the tribunal. In particular the EAT held that it was not necessary to put a “sinister” interpretation on the manager’s actions simply because the tribunal had rejected her evidence about what had actually happened in the workplace.
This is an interesting decision which shows the importance of a tribunal being able to conclude that conduct is “related to” a protected characteristic or is “of a sexual nature”. The manager’s actions were certainly foolish, however, and it would be hoped that in most places of work, equal opportunities training would ensure that employees are aware of the potential risks of their actions being misinterpreted, and not do anything which would create an “intimidating, hostile, degrading, humiliating or offensive environment” whether related to a protected characteristic or not.
Contact the BTO employment team if you would like to discuss any aspect of this blog.
Contact: Douglas Strang, Senior Associate dst@bto.co.uk T. 0141 221 8012