The Equality Act states that once a worker has established that a breach of the Act has occurred, the burden of proof passes to the employer. The Employment Appeal Tribunal (EAT) held in Raj v Capital Business Services Ltd and Anor that if the breach in question is unrelated to a protected characteristic, there is no rule of law that the burden must automatically shift.
Mr Raj was employed as a customer services agent processing ophthalmic forms on behalf of the NHS. Following concerns about his performance during his probation period, his employment was terminated.
He brought a number of tribunal claims including sexual harassment and/or harassment related to his sex under section 26 of the Equality Act. Specifically he alleged that Ms Ward, his team leader, had stood behind him on several occasions and given him a massage, feeling his shoulders, neck and back. Ms Ward denied the claim, alleging that she had simply tapped his shoulders on one occasion.
Section 26(1) states that it is harassment if (a) a person engages in unwanted conduct related to a relevant protected characteristic; and (b) has the purpose or effect of creating an intimidating or offensive environment for someone else.
Section 26(2) states that it is also harassment if someone engages in unwanted conduct of a sexual nature which has the effect set out in section 26(1)(b).
Section 26(3) states that it is harassment if someone engages in unwanted conduct of a sexual nature or that is related to sex.
Section 26(4) states that when deciding whether the conduct has had that effect, tribunals must take into account: a) the perception of the person affected; b) the other circumstances of the case; and c) whether it was reasonable for the conduct to have had that effect.
Following evidence from other employees, the tribunal accepted that, having taken into account the matters specified in section 26(4), there had been brief “massage type” contact by Ms Ward lasting two or three minutes which had made Mr Raj feel uncomfortable.
However, it held that as the behaviour had taken place in an open plan office and was accompanied by words of encouragement such as “well done”, it was not of a sexual nature and did not therefore satisfy the provisions of section 26(2) of the Equality Act. Nor was it related to his sex and therefore was not contrary to section 26(3).
Mr Raj appealed on the basis that the tribunal had failed to consider Section 136 of the Equality Act which shifts the burden of proof to the employer once the worker has established facts from which the court could decide, in the absence of any other explanation, that a breach of the Act relating to his sex had occurred.
Although it would have been better if the tribunal had specifically referred to section 136, the EAT held that it had still asked the correct stage one question. In other words it had asked whether there was evidence from which it could conclude that the unwanted conduct related to Mr Raj’s sex. It decided that there was not.
According to the EAT, there is no rigid rule of law which provides that, having satisfied the stage one test, the burden of proof automatically shifts to the employer if the tribunal finds that they have given untruthful or wrong evidence about an aspect of the alleged conduct or why it happened.
In any event, the tribunal had found in this case that the employer had proved that the reason for the unwanted contact was an effort to provide “misguided encouragement” on the part of Ms Ward and thus had been satisfied that the conduct in question was unrelated to Mr Raj’s sex.