Raj v Capita Business Services Ltd & Anor

Under section 136 of the Equality Act 2010, a tribunal must first ask whether the proved facts could support an inference that unwanted conduct was related to the protected characteristic. Establishing unwanted conduct and a prohibited effect does not, without more, establish that inference.

The rejection of parts of a respondent’s evidence does not automatically shift the burden of proof. Its significance is fact- and context-sensitive. A tribunal may consider all relevant evidence at the first stage, except the absence of an adequate explanation. It may also dismiss the claim on the alternative basis that the respondent has positively proved a non-discriminatory reason for the conduct.

The claimant alleged that his team leader had massaged his shoulders on two or three occasions. The Employment Tribunal found that the conduct was unwanted and had the prohibited effect required for harassment, but dismissed the claim because it was not related to sex. It found that the conduct was misguided encouragement.

The claimant appealed against the Leeds Employment Tribunal’s written reasons, sent on 14 June 2018. He contended that the Tribunal had failed to apply the shifting burden of proof under section 136 of the Equality Act 2010. The central issue was whether the Tribunal had erred in finding that no prima facie case of conduct related to sex had been established, or alternatively that the respondents had proved a non-discriminatory reason.

1. Appeal dismissed. The Tribunal had not erred in law. Although it did not expressly cite section 136 of the Equality Act 2010, its opening formulation at paragraph 98 correctly asked whether there were facts from which it could conclude that the unwanted conduct was related to the claimant’s sex.

2. The other established ingredients of harassment did not themselves permit that inference. Unwanted conduct which had a prohibited effect under section 26 was necessary for the claim, but did not show that the conduct was related to sex.

3. The Tribunal was entitled at stage one to consider the context, the performance-management relationship, the open-plan office, the accompanying praise, the absence of comparable conduct towards others, and the wider evidence. Those matters could properly point away from an inference that the conduct was sex-related.

4. Birmingham City Council v Millwood did not impose a rigid rule that rejecting a respondent’s account shifts the burden. The relevance of a rejected or untruthful account depends on whether, in its factual context, it can support an inference that the protected characteristic was the reason for the conduct. Here there was no comparator evidence or other feature linking the contact to sex.

5. In any event, the Tribunal made a positive factual finding that the purpose of the contact was misguided encouragement. It was entitled to accept that explanation while rejecting the team leader’s account of the extent of the contact. That finding meant that, even if the burden had shifted, the respondents had shown that the conduct was unrelated to sex. The Tribunal’s final wording did not undermine that legally sufficient alternative basis for dismissal.

• Employment Appeal Tribunal: appeal dismissed; the Tribunal upheld the dismissal of the harassment-related-to-sex complaint.
• Leeds Employment Tribunal: written reasons sent on 14 June 2018. The Tribunal dismissed the harassment-related-to-sex claim, while upholding a breach of contract claim.