Was the touching of shoulders sexual contact?
The ET found that the Claimant had been subjected to unwanted physical contact by his team leader. She massaged his shoulders on two or three occasions in the open plan office where he worked. This had the effect specified in section 26(1)(b)(ii) of the Equality Act 2010. However, the ET dismissed the harassment claim on the basis that the conduct was not related to the Claimant’s sex.
The Tribunal concluded that the Respondents had proved the reason for the unwanted contact was “misguided encouragement” and were satisfied that it was unrelated to the Claimant’s sex.
The Claimant asserted that the touching of his shoulders was “unwanted conduct of a sexual nature” within the meaning of s.26(2)(a) Equality Act 2010.
Having rejected the explanation of the team leader (that she had simply tapped the claimant on the shoulder), the Claimant asserted that the burden of proof should shift so that she should provide an explanation for the touching and that it was not related to sex in accordance with s.136 Equality Act 2010.
The claimant contended that in the absence of such an explanation 136 directed attention to whether the facts were such that, absent any other explanation for it, the ET could conclude that the massaging of the Claimant was related to his gender (stage one) and if so, had the Respondents shown that it was not, in fact, related to his gender (stage two).
The EAT rejected this argument and outlined that there is no rigid rule of law that the Claimant will always satisfy the stage one test and shift the burden of proof if the Tribunal finds the Respondent has given untruthful or wrong evidence about an aspect of whether the conduct happened or why it happened.
Unwanted conduct that creates an intimidating atmosphere will not automatically be harassment if the conduct is not linked to a protected characteristic or of a sexual nature.