Air Kisses or Sexual Harassment? Lessons from Miss J Chen v Cut Your Wolf Loose Ltd

The Equality Act 2010 defines sexual harassment as unwanted conduct of a sexual nature which has the purpose or effect of violating someone's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

This can take many forms, including displaying or sharing graphic pictures, making gestures, intrusive questioning about a person's private life, and touching, hugging, or massaging a person.

Different sectors, industries and workplace settings also have different risk profiles in relation to sexual harassment.

Guidance from the Equality and Human Rights Commission (EHRC) explains that workplace settings where power imbalances exist, a lack of oversight, or social interactions blur professional boundaries can increase the likelihood of inappropriate behaviour.

Industries with a dominant gender imbalance or cultures that tolerate "banter" at the expense of professionalism can also pose a higher risk for workplace harassment.

Miss J Chen v Cut Your Wolf Loose Ltd and Others

The case of Miss J Chen v Cut Your Wolf Loose Ltd and Others highlights the importance of context and intent in sexual harassment allegations.

Facts:

• Miss J Chen worked for Cut Your Wolf Loose, a specialist whisky bar in Brighton.
• During her employment, the assistant manager often walked the Claimant home at the end of their shifts.
• The Claimant alleged that when the assistant manager walked her home, he kissed her intimately on her neck on two occasions. However, it was argued that he only gave her an air kiss.
• Miss Chen brought various claims, including sexual harassment.
• The Tribunal found the company's version of events to be more credible, despite the two contradicting accounts, and ruled that the air kiss did not amount to sexual harassment under the Equality Act 2010.
• The Tribunal's decision was based on its assessment that the air kiss was not of a sexual nature and did not have the purpose or effect of violating Miss Chen's dignity or creating a degrading or offensive environment.
• The Tribunal considered factors such as the cultural context of air kissing as a social greeting, the lack of accompanying suggestive behaviour, and the general conduct towards Miss Chen. It concluded that whilst Miss Chen may have felt uncomfortable, the conduct did not meet the legal definition of sexual harassment.

AA Solicitors Ltd (T/A AA Solicitors) & Anor v Majid

In contrast, the case of AA Solicitors Ltd (T/A AA Solicitors) & Anor v Majid illustrates circumstances where actions were deemed to meet the threshold for sexual harassment.

Facts:

• Miss Majid, a paralegal at AA Solicitors, experienced multiple instances of unwanted conduct from Mr Ali, the sole solicitor at the firm. These included unsolicited invitations, attempts to hug her, and other unwelcome physical contact.
• The Employment Tribunal found that such actions violated her dignity and created an intimidating environment, thereby constituting sexual harassment.
• Miss Majid was awarded £14,000 for injury to feelings.

These contrasting cases underscore the significance of context, intent, and the nature of conduct in sexual harassment claims.

Whilst the air kiss in Miss Chen's case was deemed non-sexual and culturally normative, the persistent and unwelcome behaviour in Miss Majid's case met the legal definition of sexual harassment.

The EHRC provides guidance to help employers comply with their legal obligations and prevent sexual harassment.

Key recommendations include:

1. Develop an Effective Anti-Harassment Policy and Engage with Staff: Employers should establish a comprehensive policy that clearly defines unacceptable behaviour, outlines reporting procedures, and specifies consequences for violations. This policy should be regularly reviewed and communicated to all staff, ensuring employees know how to report sexual harassment and the consequences of breaching the policy.
2. Conduct Risk Assessments: Regular assessments can help identify potential areas where sexual harassment might occur and take steps to minimise those risks, including circumstances relating to third parties.
3. Provide Training: Regular training sessions should be conducted to educate employees about what constitutes sexual harassment, what to do if they experience or witness it, and the importance of maintaining a respectful workplace culture. Employers should also train managers to effectively handle sexual harassment complaints.
4. Establish Reporting Mechanisms: Employers should set up clear and accessible reporting procedures, ensuring employees feel safe to report incidents without fear of retaliation.
5. Dealing with Complaints: Employers should promptly investigate the incident sensitively, supporting the affected employee(s) and taking appropriate disciplinary action against the alleged perpetrator as necessary.
6. Monitor and Evaluate: It's essential to continuously monitor the workplace environment and evaluate the effectiveness of the measures, making necessary adjustments to policies and procedures as needed.

By implementing these steps, employers can create a safer and more inclusive workplace, reducing the risk of sexual harassment and ensuring compliance with legal obligations.