Legal update – Navigating Boundaries in the Season of Affection

13 February 2025

Workplace Harassment: Navigating Boundaries in the Season of Affection

A recent employment tribunal ruling has clarified the legal definition of sexual harassment, concluding that an ‘air kiss’ does not constitute harassment under UK employment law. This case serves as an important example for employers in understanding the threshold for sexual harassment claims and highlights best practices for addressing workplace grievances. 

The case was brought forward by Miss Chen, a hospitality worker who alleged that her manager at a Brighton whisky bar engaged in unwanted conduct of a sexual nature by hugging her and performing an ‘air kiss.’ However, the tribunal, presided over by Judge Tom Perry, ruled that the gesture did not meet the legal definition of sexual harassment, as it was not objectively reasonable for Miss Chen to perceive it as such. 

Judge Perry concluded that Miss Chen had likely “misinterpreted” the manager’s actions. He emphasised that while individuals can sometimes detect inappropriate intentions in seemingly minor actions, this particular case did not meet the legal threshold for harassment. Notably, the judge found the manager’s testimony to be more credible than Miss Chen’s, describing the latter’s account as inconsistent. 

All of Miss Chen’s claims, including those of race harassment and unfair dismissal, were ultimately dismissed. 

Sexual harassment is defined under the Equality Act 2010 as “unwanted conduct of a sexual nature” that either violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment. Importantly, the impact on the complainant must be reasonable in all circumstances. 

While physical contact is not required for an act to be deemed sexual harassment, the tribunal applied a common-sense approach in assessing whether the conduct in question met the necessary threshold. The ruling underscored that: 

• An ‘air kiss’ alone does not constitute unwanted sexual conduct. 

• The intention of the alleged perpetrator is not the sole determining factor; the perception of the claimant must also be reasonable. 

• Evidence and credibility play a crucial role in tribunal decisions. 

This case serves as a reminder for employers to take proactive measures in preventing and addressing allegations of sexual harassment effectively. Key considerations include: 

1. Developing Clear Policies 

Employers should implement a dedicated sexual harassment policy that defines unacceptable behaviour and provides clear examples. While anti-harassment policies exist, having a separate policy on sexual harassment ensures clarity and reinforces a zero-tolerance approach. 

2. Providing Regular Training 

Regular training sessions should be conducted for all employees, including managers, to help them understand what constitutes sexual harassment, how to report incidents, and how to handle complaints sensitively. Training should emphasise: 

• Identifying inappropriate behaviour. 

• Encouraging a culture of respect. 

• Empowering managers to lead by example and address concerns effectively. 

3. Encouraging a Safe Reporting Mechanism 

Employees must feel confident in reporting concerns without fear of retaliation. Employers should establish confidential reporting channels and ensure complaints are handled with discretion and fairness. 

4. Assessing Risk Factors 

Employers should conduct targeted risk assessments to identify and mitigate potential harassment risks. This includes considering: 

• Remote and hybrid working risks, including inappropriate electronic communication. 

• Workplace culture and power dynamics that may contribute to harassment. 

• Offsite work-related events where inappropriate behaviour might occur. 

5. Ensuring Consistent Handling of Complaints 

Even in cases where allegations are not upheld, every complaint must be taken seriously and investigated thoroughly. Employers should: 

• Follow a clear, impartial investigation process. 

• Document all steps taken to demonstrate due diligence. 

• Support both the complainant and the accused throughout the process to maintain workplace integrity. 

While this tribunal ruling clarifies that an ‘air kiss’ does not necessarily constitute sexual harassment, it underscores the importance of applying a case-by-case analysis using a reasonable interpretation of facts. Employers must remain vigilant in fostering a safe and respectful workplace by implementing strong policies, conducting regular training, and ensuring robust grievance mechanisms. By taking these steps, organisations can create a culture that prioritises dignity and inclusivity for all employees.