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In a harassment case, does proving that conduct created an offensive or humiliating environment by itself give rise to a prima facie case that such conduct relates to a protected characteristic?

Not always, held the EAT in Raj v Capita Business Services, dismissing the Claimant’s appeal.

The Claimant’s (female) manager had massaged his shoulders in an open office, which the tribunal found was unwanted conduct producing an offensive environment for him. The tribunal rejected part of the manager’s evidence about the massages, but accepted that the conduct was not related to the Claimant’s gender, the reason for it was misguided encouragement, so the harassment claim failed.

In applying the two-stage test in s136 Equality Act, the Claimant met stage one by proving unwanted conduct producing an offensive environment. By itself, this was not enough for stage two, to establish a prima facie case that the unwanted conduct related to a protected characteristic (here, the Claimant’s sex); the burden of proof had not shifted to the Respondent to prove the reason for the conduct, and even then, the explanation was accepted.

There is no rigid rule of law that a Claimant, having met stage one, will shift the burden of proof for stage two if the tribunal finds that a Respondent has given wrong or untruthful evidence about conduct or why it happened. The tribunal had not erred in law by failing to approach the case on the basis that the burden of proof had shifted to the Respondents to show that the conduct in question wasn’t related to the Claimant’s sex. The tribunal had anyway accepted a non-discriminatory reason for the conduct, so the appeal failed.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary.