The case involved a female employee, Jing Jing Chen, who claimed that her male manager had hugged her and then leaned in to kiss her on the cheek without her consent during a workplace conversation, saying that the incident made her feel uncomfortable and was an example of sexual harassment.
The Equality Act defines sexual harassment as unwanted conduct of a sexual nature that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment. Crucially, the behaviour must be unwelcome, and its impact on the recipient must be assessed objectively and subjectively.
Her manager, Paul de Newtown, said he only gave her an ‘air kiss’ – defined by the Collins dictionary as “a kissing gesture, especially one directed towards a person’s cheek, made without making physical contact”.
The tribunal concluded that de Newtown’s action, while unwelcome, was not inherently sexual. It also took into account the context, the intent behind the behaviour, and the reaction of the employee at the time, before deciding that the manager’s behaviour did not meet the threshold defined by the Equality Act 2010.
“This ruling should not be taken as diminishing the responsibility of employers to maintain a safe and respectful workplace, but rather an illustration of the very fine line that can divide harmless social gestures and conduct that crosses professional boundaries,” explained Chris Dewey, Director and employment expert with Ward Gethin Archer Solicitors.
“While not every unwelcome action constitutes harassment under the Equality Act, employees have the right to feel respected and safe in their workplace. Employers must foster a workplace culture that encourages open communication and be active in addressing concerns early to help avoid misunderstandings or worse.”
Key takeaways for employers include:
- 1. Context Matters: The tribunal emphasised the importance of considering the context and intent of behaviour. Employers should ensure that workplace training includes guidance on understanding boundaries and recognising behaviour that could be perceived as inappropriate.
- 2. Clear Policies: Employers must have clear policies on workplace behaviour and harassment, including examples of unacceptable conduct. These policies should also outline procedures for addressing complaints.
- 3. Cultural Sensitivity: Actions that may seem harmless to one person could be unwelcome or offensive to another, particularly across different cultures and backgrounds. Creating an inclusive workplace culture requires ongoing education and awareness.
- 4. Prompt Action: Employers should take all complaints seriously, conducting thorough investigations to determine whether conduct breaches workplace standards or the law.
Useful resources, with guidance on the Equality Act and inclusive workplaces, are available at the Equality and Human Rights Commission https://www.equalityhumanrights.com/
This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.
