The claimant worked for the respondents but his employment was terminated under the probation period following a number of meetings when his performance was considered.  He then made a claim to the Employment Tribunal including an allegation of sexual harassment or harassment relating to his sex as a result of the actions of his team leader, Ms Ward.

This complaint arose on foot of several occasions where Ms Ward would have stood behind the claimant and proceeded to give him a massage.  This would have involved Ms Ward rubbing his neck, shoulders and back.   The claimant alleged that this was unwanted conduct of a sexual nature or alternatively unwanted conduct relating to his sex as prohibited under Section 26 of the Equality Act 2010 (the equivalent is Section 6A of the Sex Discrimination (NI) Order 1976 in Northern Ireland).  At first instance, the Employment Tribunal found that the conduct was unwise and uncomfortable for the claimant but was not of a sexual nature nor was it related to the sex of the claimant.   Therefore, the claim was dismissed.

The claimant appealed the decision arguing that there had been an error in law regarding the application of the law on sexual harassment as well as failing to apply the correct process regarding the burden of proof.

The EAT held that on the issue of the burden of proof that whilst there were no express references to the shifting burden; the two stages had been taken into account by the Tribunal.  There was a reliance on Birmingham City Council v Millwood [2012] which outlined that even where the Tribunal rejects some aspect of the respondent’s evidence it does not always lead to the burden having to shift. Therefore, the Tribunal was not bound to consider the second stage as they had found that the conduct was not sexual or related to the sex of the claimant.

In terms of the actual nature of the conduct, the EAT held that the massages that were given were ‘misguided encouragement’ that were accompanied with words of praise for the claimant, who had been underperforming.  Other factors that were considered including that it involved a ‘gender neutral’ part of the body, it was in an open plan office and that the manager had not behaved in that way to any other employee, whether male or female.  Taking these factors into account, the EAT upheld the ET’s decision that the conduct was not related to the claimant’s sex and was not sexual conduct.

Practical Lessons  

This decision is somewhat surprising considering the conduct of the line manager.  If the gender roles had been reversed it is hard to imagine that the Tribunal would decide that the touching was not sexual or related to the sex of the claimant.

This surprise is exacerbated considering the widespread coverage of sexual harassment in the news relating to the powerful and the famous. This decision should not be regarded as the limits to how a line manager can liaise with their staff but rather the focus should be on the discomfort and the misguided nature of the conduct.  Whilst not leading to a finding against the respondent, it still demonstrates practices that should be avoided.
https://www.bailii.org/uk/cases/UKEAT/2019/0074_19_0606.html