Hands off the bump!
HANDS OFF THE BUMP!
Our Co-Founder Nick writes about pregnancy bumps, invasions of personal space and harassment.
If you were asked whether it was appropriate to touch a colleague at work without an invitation to do so, you’d probably say no. What about touching a pregnancy bump?
My wife and I had a baby a couple of years ago and this was the first time I really became aware of the fascination people have with pregnancy bumps. Since then, when friends or family have had children, I continued to hear stories of people on public transport, in shops and on the street approaching and placing their hands straight on to the bump.
In public, the nice old lady who touches a pregnancy bump probably gets away with it – although she may have annoyed the mum to be. But what about at work? Could touching someone on their bump amount to harassment or have other serious consequences?
What is harassment?
Harassment is where one person (Albert) engages in unwanted conduct towards another (Beatrice) and that conduct is related to a protected characteristic of Beatrice.
The conduct must also have the purpose or effect of either violating Beatrice’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for Beatrice.
Finally, you look at whether the conduct should have this effect. In doing so, you must take into account the perception of Beatrice, the other circumstances and whether it is reasonable for the tummy-touching to have that effect.
Is the conduct wanted?
Whether the conduct is wanted, is important.
If you are invited to touch a bump, then that is fine. Bump touching between two close colleagues who are also friends, is also likely to be fine. However, if Albert was Beatrice’s manager, touching her bump is less likely to be wanted.
A lot is therefore going to depend on relationships and who the pregnant person is.
What is a protected characteristic?
The protected characteristics for a harassment claim include age, disability, race and sex. Pregnancy and maternity is not included for a harassment claim. However, Beatrice would argue that the touching is related to sex (and by sex, I mean female).
What was the purpose or effect of the touching?
The unwanted touching of the bump could easily have the effect of violating Beatrice’s dignity and could create a degrading, humiliating or offensive environment for Beatrice. Depending on the circumstances you can see how it would fall under these headings. For example:
- touching the bump in front of everyone in a serious meeting could be degrading;
- stroking the bump could violate her dignity;
- making a comment about the size of the bump in front of others, may be humiliating.
Should the touching have that effect?
The final test is whether the conduct should have had the purpose or effect of violating Beatrice’s dignity or creating a hostile, intimidating, humiliating or degrading environment for her. It is likely to always be the effect that is looked at, rather than the purpose. I am sure that few people touch a bump with the purpose of creating such an uncomfortable environment for a pregnant person.
Lets look at some examples. Where there are two pregnant employees and they are both touching each other’s bump it is unlikely that Beatrice would perceive the conduct as degrading or as creating a hostile (etc.) environment for her. The circumstances and reasonableness would also suggest this too.
What ever the interpretation of Beatrice, a tribunal would be unlikely to find that Beatrice’s dignity was violated or that there was a hostile (etc.) environment if the reason for the bump touching was to block a miscellaneous flying object from hitting the bump. Clearly, looking at the circumstances and reasonableness, it should not have that effect on her.
The conduct may also not be found to have the effect of violating dignity or creating a hostile, intimidating, degrading or humiliating environment if the touching is from the father of the baby who also works there (Christmas Party father or otherwise).
However, it will all depend on the individual case and something that would be ok in one scenario may be perceived completely differently in another or by another Beatrice.
Other than harassment, what are the other risks?
Beatrice could resign and may have an argument for constructive dismissal. This is not likely in many cases but if Albert was a manager and he touched her in front of her clients at a serious meeting and it was accompanied by an embarrassing comment (“do you know who the father is yet?”), you could see how that would seriously breach trust and confidence. A breach of the implied term of mutual trust and confidence is the argument most used in constructive dismissal claims.
What to do if you are a pregnant employee?
Beatrice should ask Albert not to touch her if it is something that makes her feel uncomfortable.
Should this not work or if this would not be appropriate, Beatrice could raise a grievance. Beatrice should ask for a copy of her employer’s grievance procedure which will set out what steps she needs to take.
Should the harassment be more serious or if the grievance process (including an appeal) does not produce a satisfactory outcome, Beatrice may consider resigning and she could have a case for constructive dismissal (in addition to an harassment claim). However, before taking such a drastic step, we would advise that legal advice is taken.
How should an employer deal with the bump-touchers?
Should Beatrice 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.
Depending on the facts, it may be that Albert faces disciplinary action for the touching too.
To avoid such things happening in the first place, an employer could run equality and diversity training sessions (which would deal with other forms of discrimination and harassment too). An employer could even be liable for Albert’s actions should Beatrice bring a claim against Albert and her employer. Having the right policies in place and providing training to staff, can be used as a defence to such a claim, leaving Albert to defend the claim on his own.
Are they even pregnant?
Of course, worse than touching a pregnancy bump is touching someone’s stomach because you think they are pregnant when they are not. This is bad where ever it happens but could have a really serious impact in the workplace, including a claim for harassment.
Don’t touch the bump unless you are invited to. If you are the pregnant employee and want advice generally about avoiding the bump-touchers, Mumsnet have drafted some serious (and amusing) guidance on avoiding the bump-touchers here.