Raj v Capita Business Services Ltd & Anor

Under section 136 of the Equality Act 2010, a claimant must first establish facts from which a tribunal could conclude, absent another explanation, that unwanted conduct was related to a protected characteristic. Proof of the other elements of harassment does not by itself meet that threshold.

The rejection of parts of a respondent's account does not automatically shift the burden. Whether it permits the required inference is fact- and context-sensitive. A tribunal may consider all relevant evidence at stage one, save for the absence of an adequate explanation. It may also dismiss a claim on a positive finding that the respondent has 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 contact was unwanted and had the proscribed effect under section 26 of the Equality Act 2010, but dismissed the claim of harassment related to sex. It found that the contact was misguided encouragement and was not related to sex.

The claimant appealed from the Leeds Employment Tribunal's written reasons, sent on 14 June 2018. The sole amended ground alleged a failure to apply the shifting burden of proof under section 136. The central issue was whether the Tribunal had lawfully concluded that the stage-one threshold was not met and, alternatively, that the respondents had proved a non-discriminatory explanation.

1. Appeal dismissed. The Employment Tribunal did not err in law in dismissing the harassment-related-to-sex claim.

2. The Tribunal's statement that there had to be facts from which it could conclude that the unwanted conduct related to the claimant's gender was a correct stage-one direction under section 136 of the Equality Act 2010. Although an express reference to section 136 and the authorities would have made the reasons clearer, its omission was not itself an error of law.

3. The Tribunal was entitled at stage one to consider the surrounding context, including the performance-related relationship between manager and employee, the open-plan office, the accompanying praise, and the absence of evidence of comparable conduct towards others. Those matters were capable of pointing away from an inference that the conduct related to sex.

4. The claimant's proof that the contact was unwanted and had a prohibited effect did not itself establish a prima facie case that it was related to sex. Nor did the Tribunal's rejection of parts of the team leader's evidence automatically shift the burden. Birmingham City Council v Millwood did not create a rigid rule to that effect; the significance of a rejected or untruthful account depends on the evidence and context.

5. In any event, the Tribunal made a positive factual finding that the contact was misguided encouragement. It was entitled to accept that explanation despite rejecting the team leader's account of the extent of the contact. That finding established, on the alternative stage-two basis, that the conduct was not related to the claimant's sex.

• Employment Appeal Tribunal: Appeal dismissed: [2019] UKEAT 0074_19_2006.
• Leeds Employment Tribunal: Written reasons sent on 14 June 2018. The Tribunal dismissed the claim of harassment related to sex, while finding unwanted physical contact with a prohibited effect.