Is getting massaged by your employer a valid reason to claim sexual harassment? 

Sexual harassment often leaves the victim in an uncomfortable and confusing predicament. Most of the time, it is masked in mild banter, offensive comments that are accompanied by sexual gestures or tones, or awkward but seemingly innocuous statements. This creates a gray area that makes it easy for perpetrators to get away with their conduct. Post the #metoo movement there has been a lot of conjecture around sexual harassment at the workplace. There is bedlam at workplaces and employees are confused if they can ask their colleagues out for a date or can they comment on their clothing or can a mere inappropriate physical contact be treated as sexual harassment conduct. 

A recent case as reported by United Kingdom Employment Appeal Tribunal dechires if massaging an employee’s shoulders by a member of an opposite-sex be can be considered as a valid claim of Sexual Harassment. 

In a landmark UK case, Raj v. Capita Business Services Limited and Ward, it has been held that such a contact is not to be deemed as ‘enough’ to make the accused liable. 

Facts of the case 

The complainant, Mr. Raj, was employed by Capita Business Services to provide support on behalf of the National Health Service. Sometime later, Ms. Ward, the accused, became the team leader of Mr. Raj. It was alleged by Mr. Raj that Ms. Ward had massaged him a few times on his shoulders, neck, and back. He was terminated from employment following a number of meetings at which his performance was considered. He made various allegations in the Employment Tribunal (ET), including sexual harassment and/or harassment related to sex in relation to the actions of his team leader, the Second Respondent. The ET held that, as  “unwise and uncomfortable as the conduct, i.e. casual touch was” the complaint failed. Thus, an appeal was filed with the Employment Appeal Tribunal (EAT) with respect to inappropriate physical contact allegations. 

Decision of the ET & EAT 

Both ET & EAT dismissed the complaint, though both had different reasons to do so. The  Employment Tribunal focused more on the fact that Mr. Raj had been subjected to unwanted  physical contact by his team leader, by massaging his shoulders on two or three separate occasions in the open-plan office where he worked; and this had the effect specified in  section 26(1)(b)(ii) of the Equality Act 2010. However, the Employment Tribunal dismissed the harassment claim on the basis that the conduct was not related to the Claimant’s sex. The EAT, on the other hand, also looked at section 136 of the above-said legislation as well, in order to check whether it could be classified as an action related directly to the gender of the victim. In any event, the Tribunal found that the defendants had proved the reason for the unwanted contact as ‘misguided encouragement’ on the part of Ms. Ward and thus had been satisfied they had shown the conduct in question was unrelated to the Mr.Raj’s sex. 

The rationale behind the Judgement & Analysis 

Though the testimonies of the witnesses were cited as not very reliable, both the tribunals came to the conclusion that it was very difficult to ascertain whether this actually constituted a case for sexual harassment or not. It was said that the contact made by the team leader made the Mr. Raj uncomfortable, but what is to be noted here is that the contact did not make him ‘uncomfortable enough’ to put this deed under the ambit of sexual harassment.  

If the genders of Mr. Raj and Ms. Ward were reversed, there is a high probability the outcome would have been very different. But, in this case, it was written down as a mistake on the part of the team leader to make physical contact in that manner with the complainant. With regard to the question of this being a case related to the sex of the complainant, the Tribunal found that Mr.Raj’s shoulders were a “gender-neutral” part of the body and not an area of particular intimacy or sexual sensitivity. Therefore, as said Ward and Capita, the contact may have been a casual touch and ill-advised, but it did not relate to Mr.Raj’s sex. What should be emphasized here is the fact that the person felt uncomfortable due to physical contact with another person, not the argument that the area of contact was ‘not sexually sensitive’. If a person feels discomfort due to unwanted physical intimacy, it cannot be taken as misdoing on the part of the accused. While it is correct that there is a difference between sexual harassment and other kinds of harassment, there needs to be some sort of clear definition of what has to be constituted as a case of sexual harassment. The Indian law is also silent on the point. Section 2(n) defines “Sexual Harassment” as having physical contact or conduct among other definitions, but it is silent as to what kind of physical conduct actually comes under inappropriate physical contact. The case has highlighted the lacuna of the law, and it needs to be corrected as possible. 

Conduct Training Sessions 

India Inc has constantly reported a hike in cases of sexual harassment at the workplace. It is crucial for organizations to educate all members of the workforce about inappropriate physical contact ensuring they are all on the same page with what is appropriate behavior and what constitutes sexual harassment. Ungender helps organizations in streamlining the process of conducting company-wide face to face and online employee sensitization sessions on inappropriate physical contact under POSH Act, 2013.