Blowing kisses, not boundaries

A recent Employment Tribunal case has sparked debate about the boundaries of workplace behaviour, with a male manager’s attempt to ‘air kiss’ a female colleague raising questions about what constitutes inappropriate or unwanted conduct at work.

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.

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/

To speak with Louisa about this or any other aspect of Employment Law, please call 01483 887766, email info@hartbrown.co.uk or start a live chat today. 

*This is not legal advice; it is intended to provide information of general interest about current legal issues.

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Louisa Keville

Associate, Employment Law

Louisa is an Associate in our Guildford office and specialises in employment law. Louisa qualified as a Solicitor in 2005 after studying for an LLB...

Associate, Employment Law

Louisa Keville

Louisa is an Associate in our Guildford office and specialises in employment law.

Louisa qualified as a Solicitor in 2005 after studying for an LLB (Hons) Law and Spanish degree. She previously worked as an Associate at a well known law firm based in London.

She specialises in advising employers and employees on a wide range of workplace issues. She provides pragmatic and tailored advice on matters such as employment contracts, disciplinary and grievance procedures, redundancy processes and workplace disputes.

With a strong focus on achieving practical and cost-effective solutions, Louisa assists clients with navigating complex areas of employment law, including unfair dismissal claims, discrimination cases, and TUPE (Transfer of Undertakings) matters.

Louisa is a member of the Employment Lawyers Association. Outside of work, Louisa enjoys all sports, and has taken part in a number of marathons in her spare time.