Please don’t hug me

PLEASE DON’T HUG ME

Our Co-Founder Nick writes his first blog of the year discussing the social awkwardness of hugging and how this can get individuals and businesses into bother!

The festive period is over and everyone is back in work and miserable again. Some of my friends are doing dry January and others are trying to go meat free for the month. I’m doing neither…

The upside of the start of January is that hugging season is now over. Some people are “huggy”; I am not. I see someone coming in for a hug (more often than not this is now someone who knows that I’d prefer a hug-free greeting) and I tense up and an awkward embrace is often the result.

Family, colleagues, friends, friends of friends, clients, neighbours and, strangely, the postman.

I thought my lack of appreciation for a hug would make a good first topic of the year for our blog. Whilst my unwanted hugs are due to social awkwardness, unwanted contact in the workplace can bring the risk of a claim against both the employer and the individual employee who made the unwanted contact.

What is sexual harassment?

Sexual harassment occurs where A (let’s call him Andrew) engages in unwanted conduct of a sexual nature towards B (Bettie or Ben), and Andrew’s conduct has the purpose or effect of violating Bettie’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for Bettie.

So, what does that actually mean? Andrew, Ben and Bettie work together. If Andrew touches Ben on [insert inappropriate body part here!] then that is something that you would think clearly was sexual harassment. However, that may not be the case – there are other factors that need to be taken in to account. In a different scenario, Andrew touching Bettie’s shoulders may amount to sexual harassment. We know – it can get very confusing!

Important considerations

In the above scenarios, after considering whether it is of a sexual nature, we also need to look at the purpose or effect of the conduct or behaviour. In doing so we look at Ben or Bettie’s perception of the behaviour, the other circumstances of the case and whether it was reasonable for the behaviour to have that effect on Ben or Bettie. It is important to remember that a one-off act may be enough and it does not need to be a long course of conduct to amount to harassment.

A slap on the bum in congratulation of a sale between Andrew and Ben in a sales team (whilst we would strongly urge you to stop that) may not be seen by Ben to violate his dignity. The slap also may not create an intimating, hostile, degrading, humiliating or offensive environment for Ben and that is also not the purpose of Andrew’s slap. Further, in the sales environment that they work in, they may all do it to each other and it may not be reasonable for it to have that effect. This is an extreme example and let’s remember that Chandler in Friends was very uncomfortable when his new boss did this. We will also ignore the general conduct issues here for now.

However, if Andrew, a senior colleague, stands behind Bettie, a junior colleague, and puts his hands on her shoulders, this could easily be perceived by Bettie as violating her dignity or as behaviour that creates an intimidating or degrading environment for her. I am sure we all know or have worked with someone that we can imagine doing this to someone else in a way that would make the junior colleague feel very uncomfortable.

Can a hug be sexual harassment?

You can see that in the wrong circumstances, a hug could easily fall within the definition of sexual harassment. For me, it is certainly unwanted but a hug by a colleague as a greeting is not of a sexual nature and certainly would not have the purpose or effect on me required to meet the definition. However, a hug by a director of a business to a junior colleague could easily meet the definition. I realise that this is accidentally topical at the moment (Google it).

Issues can also arise where something has been going on for years and then suddenly, someone feels less comfortable about it. What if there was a big news article about harassment in the film industry and suddenly Bettie reassesses how she feels about Andrew’s conduct which had been going on for years? The length of the conduct would be considered when deciding if it meets the test but would not be a guaranteed defence.

How does this impact employers?

One of the more frustrating things for employers is that they can be liable for the actions of one of their employees, an Andrew. If Andrew does something that amounts to sexual harassment to Bettie, she has the option to bring a claim against the employer and Andrew. The employer is vicariously liable for the actions of Andrew.

From the employer’s point of view, there is a potential defence to such a claim but to be able to have a chance of success with it, it is important that you have a good equality and diversity policy (which you can evidence has been provided to Andrew) and better still, you have provided training on the issue and can demonstrate Andrew’s attendance at the training.

What should an employee do if they are being harassed?

Should this happen to Bettie, the normal course of action would be for Bettie to raise a grievance. Bettie should ask for a copy of her employer’s grievance procedure which will set out what steps she needs to take including who she needs to raise the grievance to and in what form (written or otherwise).

Should the grievance process (including an appeal) not produce a satisfactory outcome or if the harassment continued, Bettie may consider resigning and could have a case for constructive dismissal (in addition to a sexual harassment claim). However, before taking such a drastic step, we would advise that legal advice is taken.

How should an employer deal with sexual harassment?

Should Bettie raise a grievance, the grievance should be dealt with in accordance with the grievance procedure and it is important that it is dealt with promptly and investigated thoroughly.

For more serious conduct or where an issue has been raised and has not been dealt with, Bettie may resign and have a case for constructive dismissal (in addition to the sexual harassment claim). It is therefore important that these things are dealt with as soon as an employer becomes aware of an issue (assuming the equality training did not work) so that they do not escalate to a position that cannot be saved and could result in resignations and/or claims. Disciplinary action may be required against Andrew and such conduct may amount to gross misconduct resulting in summary dismissal.

A lot to think about. The next time you are hugged or hug someone, perhaps you will feel as socially awkward as me…

Nick

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