Following the news that employees at fashion house Ted Baker have launched a petition over ‘forced hugging’, what is acceptable in the workplace, and what could be considered harassment? Lucy Kenyon – DAS Law.
What constitutes harassment? The law in this area is governed by The Equality Act 2010 and it sets out three tests for harassment. Firstly, the harassment must be unwanted conduct in relation to a relevant protected characteristic. These characteristics are Age, Disability, Gender reassignment, Race, Religion or belief, Sex and Sexual orientation.
This conduct must then have the purpose or effect of violating the dignity of the person, or of creating an intimidating, hostile, degrading, humiliating or offensive environment. As an example, if a supervisor makes a general comment that ‘women belong in the kitchen’, this could be considered harassment because a female employee could become upset, or take this to mean that she will not be promoted. If the unwanted conduct is of a sexual nature and has the same impact, this is called sexual harassment and covers a wide range or actions, such as touching, inappropriate jokes or sending emails of a suggestive or sexual nature.
Finally, a person is harassed if they rejected or submitted to conduct and anyone treats them less favourably than if they hadn’t submitted to or rejected that conduct. The person who treats them differently does not have to be the person who engaged in the conduct. This ‘conduct’ is unwanted conduct either of a sexual nature or that is related to gender reassignment or sex that has the purpose or effect of creating an intimidating, hostile, degrading or offensive environment. As an example, a boss could make sexual advances towards an employee and the employee rejects them. If the manager then passes that employee over for a promotion a few weeks later, then they could believe that it is due to the rejection.
So is hugging acceptable in the workplace?
Even if you are a professional hugger, there is no definitive answer to this. However if on either side the contact is forced, coerced, or in any way unwanted then it is not acceptable. A ‘culture of hugging’ is unacceptable as it can cause people to be intimidated into hugging. Likewise anyone may feel that they have to participate in a hug with their seniors which can create an environment as outlined above.
Hugging can count as conduct of a sexual nature as it is the way in which the person being hugged perceives the contact. Even if the intention of the hugger is to greet them or console them, they could see it as sexual and it could cause an intimidating, hostile, degrading or offensive environment for them.
How to stay the right side of the ‘line’
From an employer’s perspective, in light of the above, the #MeToo movement, and society’s shifting attitudes towards sexual harassment, employers should limit contact to (voluntary) handshakes, or even high fives and fist bumps, so as to limit the possibility that an environment could be intimidating, hostile, degrading or offensive for anyone.