Harassment is defined in Section 26 of the Equality Act. It has a particular definition unique to the Equality Act which is as follows:-
a person (A) harasses another (B) if-
a) A engaged in unwanted conduct related to the relevant protected characteristics, and
b) the conduct has the purpose or effect of-
- Violating B’s dignity, or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
This definition can be somewhat confusing but in essence, there must be conduct which creates an intimidating environment, and that conduct must be related to a protected characteristic. The protected characteristics are also set out in the Equality Act and are age, disability, gender reassignment, race, religion, sex and sexual orientation.
A recent case of Raj v Capita Business Services highlights the importance of having all elements present in order to prove your case.
In Raj v Capita Business Services, the Claimant’s female manager had massaged his shoulders in an open office. The Tribunal found that this was unwanted conduct and that it created an offensive environment for the Claimant. However, the Tribunal accepted the manager’s evidence that the conduct (the massage) was not related to the Claimant’s gender, and was a misguided attempt at encouraging him. Accordingly, the Claimant’s claim for harassment failed.
We are in no way suggesting that this case gives carte blanche to managers to go around massaging their employees in public! However, it serves as a reminder to employees looking to bring a harassment claim to look not only at the conduct but also at the reason behind it and give real consideration as to whether the “conduct related to the relevant protected characteristics”.
If you require any advice relating to unwanted conduct in a working environment, please do not hesitate to contact Charlotte Braham in our employment department.