Clarity on Expected Behaviour

Protected characteristics and conduct

Harassment has been in the legal news again this month. Anthony harasses Belinda if he does something in relation to a protected characteristic (race, sex etc) which has the purpose or effect of violating Belinda's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The connection between the protected characteristic and the conduct is key.

Burden of proof in harassment and discrimination cases

The burden of proof - who must prove what - it's 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.

Is massaging shoulders sex harassment?

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.

Unwanted conduct creating an offensive environment

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.

Misguided encouragement

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 is not discriminatory.

Paul Burton, Head of Employment says “It is crucial that your equal opportunities policies are clear when it comes to expected behaviour and what is deemed appropriate and inappropriate.  The employer was very lucky in this case that they did not suffer a discrimination result, despite the behaviour by the manager being extremely inappropriate.”

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and the Employment team will be happy to discuss it with you.

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