“Air Kissing” Does Not Constitute Sexual Harassment, Croydon Tribunal Judge Rules

In Miss J Chen v Cut Your Wolf Loose Limited and Others, a bar worker’s claim was unsuccessful following the employment tribunal’s decision that air kissing doesn’t constitute sexual harassment at work. This came after several incidents that led to the worker’s dismissal, after which she claimed her manager intimately kissed her. The tribunal, however, learned these were only air kisses, meaning she wasn’t sexually harassed.

Read on as we uncover the incidents that led to the air kiss dispute. We’ll discuss how the tribunal determined such conduct didn’t breach employment law and what constitutes sexual harassment in the workplace.

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The Facts in Miss J Chen v Cut Your Wolf Loose Limited and Others

Background to the Air Kissing Debate

Miss J Chen (“The Claimant”) began working for Cut Your Wolf Loose (“The Respondent”), a specialist whisky bar in Brighton, in September 2021. She had previous hospitality experience and “an extensive knowledge of whisky”.

Several incidents arose during the course of the claimant’s employment— the first of which happened on 7 December 2021. At such time, she messaged Mr Woolf, the bar’s owner, claiming that the then general manager had been racist towards her.

Mr Woolf consequently told Mr de Newtown, who was an assistant manager at the time, about what had transpired. He said, “If it’s true, I’ll be asking him to leave today”. The incident concerned the then-general manager making a joke that a dog barking at the claimant was being racist.

Relationship Strains Between Colleagues

Throughout the claimant’s employment, she had a “strained relationship” with a non-binary colleague named Zach. She asserted he didn’t like her due to her race, and the two had disagreements when serving customers. During a conversation between Mr de Newtown and Mr Woolf, the bar’s owner said, “Both sell differently and have different tastes. They need to respect this of each other.”

Before the respondent could intervene, though, it appeared the pair had made amends, so the matter was left alone. Unfortunately, this didn’t last long, because in February 2022, Zach complained about a comment the claimant made regarding his sexuality. Shortly after, a third party witnessed Zach making an inappropriate comment to her.

Claimant Considers Her Resignation

On 10 April, Mr de Newtown informed the claimant he was “fuming” about her comments in a staff group chat. These related to how she believed Saturday should be worked to accommodate the varying busyness levels. While Mr de Newtown appreciated her opinion, he emphasised that he would continue with his usual management practices.

Then, on 30 April, the claimant disclosed her intent to resign. She explained that she felt “unappreciated” and didn’t like her colleagues’ treatment. At the time, Mr Woolf messaged Mr de Newtown, stating she had “always got problems”. However, three days later, she rescinded her resignation.

On 13 May, the claimant met with Mr Woolf to discuss her resignation. Since Mr de Newtown couldn’t attend due to being stuck in traffic, he messaged the bar’s owner, stating, “I just don’t feel I can rely on her to follow important instructions… When she thinks she knows better she cannot be budged.” The general manager clearly wanted her gone, but Mr Woolf kept her on and told her to resolve things with Zach.

Cut Your Wolf Loose Dismisses Claimant

On 3 September, Mr Woolf became angry with the claimant when he saw her leave the bar unattended with customers still inside. She had gone to get food since she was working a double shift. Later that evening, the claimant also became unhappy when she messaged Mr Woolf for assistance cleaning up but didn’t receive any.

When the owner eventually arrived, the claimant said she “was not prepared to continue working when she felt she was doing three people’s work.” Since Mr Woolf was still angry from earlier that day, he didn’t respond.

Then, on 9 September, Mr de Newtown emailed the claimant a written warning, raising several issues. Among them, the letter discussed her leaving the bar when customers were still inside, threatening to leave her job on 3 September, and serving a minor alcohol. While acknowledging her mistake regarding serving a minor, she brought up “management failure and misconduct, corruption and exploitation within the workforce” and raised a grievance.

Consequently, on 12 September, Mr de Newtown invited the claimant to a grievance meeting. However, when she refused to attend, he later sent her a letter confirming her dismissal. The letter reasoned that her grievance clearly demonstrated she saw no fault on her part, meaning there was “no basis on which they could move forward constructively”. After receiving this letter, she was placed on garden leave until 11 October.

Air Kissing Dispute: Claimant Alleges She’s Been Sexually Harassed

Following the claimant’s dismissal on 12 September, she attended the bar that evening for a tasting event. Unfortunately, she appeared only to be there to try and humiliate Mr de Newtown. During the event, she repeatedly tested the manager’s whiskey knowledge, asking for recommendations before rejecting them in front of customers. To avoid the matter escalating, the manager left early.

The next day, the claimant accused Mr de Newtown of previously attempting to kiss her after walking her home. The general manager accepted that he had walked her home on several occasions but outright denied this accusation.

When the claimant brought her claims to an employment tribunal, they included breach of contract and sexual harassment. Here, she asserted that Mr de Newtown had kissed her intimately on the neck on two separate occasions between September and October 2021. 

Again, though, the general manager denied the accusations, asserting the incidents only involved hugging and air kissing. He claimed this occurred while saying goodbye after walking her home.

Tribunal Rules Air Kissing Isn’t Sexual Harassment

Following proceedings, the employment tribunal paid particular attention to the air kissing incident. While the claimant alleged Mr de Newtown had intimately kissed her neck, the general manager maintained it was only a kiss in the air.

With two contradicting accounts, it was difficult for the tribunal to make a finding. Nevertheless, they found Mr de Newtown more reliable on balance since some of the claimant’s previous evidence had been inconsistent. With this in mind, they established only air kisses had occurred.

At this point, the tribunal had to determine whether an air kiss constituted sexual harassment— finding that it did not. This was because they believed air kissing wasn’t sexual, and even if it was, it couldn’t have violated someone’s dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for them.

As a result, the sexual harassment claim was dismissed. When proceedings concluded, it was also held that none of the other claims brought were successful either.

What Constitutes Sexual Harassment in the Workplace?

Since a kiss in the air doesn’t constitute sexual harassment, anyone potentially affected may question what does. Under the Equality Act 2010, an individual would have been sexually harassed if they faced unwanted conduct of a sexual nature that had the effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

For example, telling an interviewee she had “the prettiest eyes he had ever seen“, and repeatedly adjusting her uniform unnecessarily once she began employment, was enough for one restaurant owner to be found guilty.

Elsewhere, a part-time property manager won her sexual harassment claim after receiving several inappropriate messages from her boss. One of the messages he sent her said, “We will have to go to Turkey together…I have an apartment down south in the blue lagoons and we can do all the fun stuff [tongue out emoji]”.

So What Doesn’t?

Air kissing isn’t the only time a sexual harassment claim has failed at an employment tribunal. In one case, a claimant was unsuccessful after mistakenly interpreting “xx” in an email as kisses rather than a genuine request for information. She also believed that “ajg”, part of the filename for a document she received, stood for “a jumbo genital” rather than her boss’ initials. Once the tribunal cleared these mistakes up, her case was dismissed.

Separately, a male employee was dismissed after his employer learned he’d taken pictures of a female employee. While the judge labelled the dismissed employee’s behaviour “A stupid form of engagement”, they ruled he hadn’t created an intimidating environment for the female colleague. Consequently, since his conduct didn’t meet the threshold for sexual harassment, the tribunal ruled his dismissal unfair.

Get Help with Redmans

While the above provides examples of what does and does not constitute sexual harassment, each case will vary, meaning assessing one’s circumstances individually is essential. If you have any questions about the air kissing case or believe you’ve been sexually harassed and want expert legal assistance, contact Redmans Solicitors.

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