In the recent case of Raj v Capita Business Services Limited and another the Claimant, a male junior employee, alleged that his female manager committed an act of sexual harassment when she “briefly massaged” his shoulders in an open plan office. In the current age of the #MeToo movement, one would assume that any form of unwanted conduct between a manager and a junior employee would be considered as sexual harassment. However, the EAT upheld the ET’s original decision that the conduct did not in fact amount to sexual harassment.
Whilst it was considered that the conduct was “unwise and uncomfortable” it failed to satisfy the requirements of the legal test for sexual harassment, partly because there was no evidence that the conduct was related to sex. It was held to be a “one-off incident” which was an attempt of misguided encouragement to an underperforming employee, rather than conduct of a sexual nature. Further, the EAT considered the fact that the act took place in an open plan office and that it involved a “gender neutral” body part.
The decision in this case highlights two important points: firstly, every case is fact-specific and it is imperative for a Claimant to satisfy every aspect of the legal test in order to succeed with a claim for sexual harassment. Further, and perhaps more importantly, it highlights the need for employers to have clear policies and training on anti-harassment and conduct in the workplace so as to avoid claims of this nature.