Employment

Massages at Work and the Shifting Burden of Proof: Raj v (i) Capital Business Services Limited (ii) Ward [2019] UKEAT/0074/19 6 June 2019 (published 16 September 2019)

The employee appealed against the Employment Tribunal’s dismissal of his harassment claim which arose out of his (female) line manager giving him massages at work.

S. 26 Equality Act 2010 (EqA) defines harassment as unwanted conduct related to a relevant protected
characteristic and which violates a person’s dignity or has the purpose or effect of creating an
intimidating, hostile, degrading, humiliating or offensive environment. S. 136 EqA ensures that where
claimants establish facts from which it may be presumed that there has been a contravention of the
provisions of EqA, the burden of proving that there has been no breach falls on the respondent.

Mr Raj, a customer service agent, alleged that on two or three occasions, when he was sitting at his
desk in an open plan office, his manager, a Ms Ward, had stood behind him and briefly given him a
massage, feeling his shoulders, neck and back. He said this was unwanted conduct either of a sexual
nature or unwanted conduct relating to his sex under S. 26 EqA.

The ET concluded that Mr Raj had proven physical contact that, although lasting only two or three
minutes, had made him feel uncomfortable. The Tribunal also found that the manager’s purpose in
administering the massages was to give misguided encouragement to Mr Raj to improve his
performance; the massages were not of a sexual nature and not related to the Claimant’s sex. The ET’s
reasons did not expressly refer to the shifting burden of proof provision under s. 136 EqA.

The EAT dismissed Mr Raj’s appeal that the ET had failed to apply the provisions under s. 136 EqA.
The EAT held, on the basis of Madarassy v Nomura International [2007] ICR 867, CA, it is not itself an
error of law not to make express reference to the shifting burden of proof. The Tribunal had correctly
stated that, in the first instance, it was for Mr Raj to establish that the unwanted conduct related to his
sex. The findings of the ET indicated that the massages were not connected to the Claimant’s sex.
While the ET has rejected some of the Respondent’s evidence, Birmingham CC v Millwood [2012]
UKEAT/0564/11/DM did not lay down a rule of law that the burden of proof would always shift
where a Tribunal rejected aspects of the Respondent’s evidence. The ET had not erred in law.

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