An employment tribunal judge has ruled that giving a colleague an ‘air kiss’ does not constitute sexual harassment.
Judge Tom Perry concluded that the social gesture, where someone pretends to kiss without making lip contact, cannot be regarded as “unwanted conduct of a sexual nature”.
The ruling came in the case of hospitality worker Jing Jing Chen, who sued her former whisky bar employers in Brighton after her manager Paul de Newtown hugged and air-kissed her.
The tribunal, held in Croydon, south London, found that Chen had ‘misinterpreted’ the gesture as a sexual advance.
The tribunal found that Jing Jing Chen had ‘misinterpreted’ the gesture as a sexual advance (stock pic)
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Chen started working at Cut Your Wolf Loose, a specialist whisky bar in Brighton, in September 2021.
The establishment describes itself as ‘an institution for the modern day whisky drinker’, and Chen was known to have extensive knowledge of the spirit.
The tribunal heard that Chen, known to colleagues as Vivian, initially maintained a positive relationship with her manager, de Newtown.
De Newtown had walked Chen home on several occasions, as she lived on his route home.
Chen alleged that de Newtown had kissed her intimately on her neck in September and October 2021, claims which he denied.
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Jing Jing Chen was working at Cut Your Wolf Loose when the incident occured
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Workplace tensions emerged by spring 2022 when Chen handed in her resignation before retracting it.
The situation deteriorated after Chen left the bar during her shift while customers were present, despite being asked to wait by the owner.
She received a formal warning for this incident and other issues, including allegations of failing to prevent alcohol being served to minors.
On the day of her dismissal, Chen attended a whisky tasting where she repeatedly challenged de Newtown’s drink recommendations.
Judge Perry found that she did this “with a view to humiliating him” in front of customers.
De Newtown left early to avoid further incident, with a meeting scheduled for the following day.
In his ruling, Judge Perry said: “On balance, I consider the most likely factual scenario here to be that Mr de Newtown gave the claimant an air kiss after hugging her and that she misinterpreted this as a sexual advance.”
The judge found de Newtown to be “an honest and straightforward witness”, while noting Chen’s evidence had been “inconsistent in a number of ways”.
“I do not consider that an air kiss is unwanted conduct of a sexual nature,” Judge Perry concluded.
All claims made by Chen, including those for race harassment and unfair dismissal, were dismissed by the tribunal.