In the current age of the #MeToo movement, one would assume that any form of unwanted physical contact between a manager and a junior employee could count as harassment.

In Raj v Capita Business Services Limited, a male employee had brought tribunal claims that his female manager committed an act of sexual harassment or harassment related to sex when she “briefly massaged” his shoulders in an open plan office. The ET decided that this did not amount to sexual harassment (as it was not considered to be conduct of a sexual nature) or harassment related to sex (as there was limited evidence to show that the conduct related to the Claimant’s gender). The Claimant challenged the latter finding and the appeal tribunal has now upheld the original decision that the conduct did not amount to harassment relating to sex.

Whilst it was considered that the conduct was “unwise and uncomfortable” and that it was indeed unwanted, it was held to be a “one-off incident”, relating to a “gender-neutral body part”.  There was no evidence that the manager had acted in this way to other employees, male or female. Rather than conduct related to sex, it was found to be a misguided attempt at encouragement of an underperforming employee and therefore non-discriminatory.

A male employee had brought tribunal claims that his female manager committed an act of sexual harassment or harassment related to sex when she “briefly massaged” his shoulders in an open plan office.

Along with other recent decisions, this shows that harassment claims are both fact and conduct sensitive: to succeed, claimants have to satisfy every aspect of the legal test.

More importantly, it highlights the need for employers to have clear policies and training on anti-harassment and conduct in the workplace in order to avoid claims of this nature. For assistance with this, contact our employment team.