25 October, 2019
The Employment Tribunal held in Raj v Capita Business Services that establishing an offensive or humiliating environment alone is not sufficient to establish that the conduct relates to a protected characteristic. In order to prove successful, a claimant must establish that the reason for the conduct is the protected characteristic. Correlation is not causation.
Raj, a man, was approached by his female manager who massaged his shoulders in an open office. On bringing a claim before the Employment Tribunal, the Tribunal found that the massaging of his shoulders was unwanted conduct which produced an offensive environment for him. The manager had offered evidence related to the massages that was rejected by the Tribunal, but it accepted that the conduct was not related to the Claimant's gender. They arrived at the conclusion that the reason for the conduct was misguided encouragement. As the causative link could not be established, the claim failed.
S.136 of the Equality Act, the relevant statutory provision, creates a two-stage test for establishing a successful claim. Raj had met the first stage of the test by proving that the massage was unwanted conduct producing an offensive environment. However, this alone was not sufficient to meet the requirements of the second stage. An offensive environment alone did not create a prima facie case that the unwanted conduct related to a protected characteristic, in this instance, the Claimant's sex. The burden of proof remains with the claimant. It is not for the respondent to prove the reason for the conduct. Even in circumstances whereby the respondent is found to have given incorrect or untruthful evidence as to the reason for the conduct, the burden of proof for stage two will not shift. In this instance, the Tribunal had in any event accepted a non-discriminatory reason for the conduct and the appeal failed.
The clear message from this decision is that correlation is not causation. Motivation is everything. It emphasises the need for comprehensive and thorough investigation should grievances be raised, and the need to employ an open mind and avoid jumping to conclusions. As the way forward is not always clear, it is advisable to take independent legal advice should there be any doubt as to the implications of any contested behaviour in the workplace that could create exposure for the employer.
For more information contact Rosalind Leahy in our Employment & HR department via email or phone on 01772 220185. Alternatively send any question through to Forbes Solicitors via our online Contact Form.