The friendly work culture as presented by Ted Baker has been identified by employees signing an online petition as a culture where hugs are insisted upon and employees often feel uncomfortable or unable to refuse. Ray Kelvin, the founder and chief executive of Ted Baker, who allegedly had a rug near his desk marking ‘the hug zone’ has now taken voluntary leave while the allegations are investigated.
But can forced hugging be construed as sexual harassment? The Equality Act 2010 defines sexual harassment as any unwanted conduct which is of a sexual nature or which relates to sex and which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for an individual. Treating an employee less favourably because they either have submitted to or have rejected unwanted conduct of a sexual nature also amounts to harassment.
Putting that into the Ted Baker context, insisting on a hug in the workplace could clearly constitute harassment, as could treating someone less favourably because they refuse to hug their boss.
Key to the statutory definition is the ‘purpose or effect’ wording – even conduct which is not intended to be threatening can amount to harassment. “I didn’t mean it that way” is not an adequate defence. Effect is considered on a subjective basis – although if an employee can show that the conduct did have the necessary effect on them, a tribunal must then consider whether it was reasonable for the conduct to have that effect. A one-off incident can amount to harassment and the individual need not have made the perpetrator aware that the conduct was unwanted.
How is the norm changing?
Since #MeToo, there is no longer an expectation that individuals who have experienced sexual harassment should keep quiet and the number of people speaking out has increased. Behaviour that might once have been tolerated is now being called out as unacceptable. Some of those previously too afraid to speak up for fear of being considered over-sensitive are now coming forward.
Speaking out about harassment in isolation remains incredibly difficult, but it is undoubtedly made easier by developments in technology and social media. The Ted Baker issues were exposed by way of an anonymous online petition, set up on a website that aims to assist workers with establishing petitions and campaigns for better working conditions. Significant pressure has been put on the company without anyone having individually to come forward and put themselves in the spotlight. Importantly, the company has responded to that pressure and this is very likely to encourage others down similar routes.
Smartphone apps have been developed which would allow employees to report sexual harassment without the potential embarrassment of having to speak to a manager face to face about sensitive issues. While there are issues with fair process when allegations are made anonymously – it’s difficult to respond to an allegation if you don’t know who has made it – this is not something that employers can afford to ignore. In the ever-growing digital world, employers will have to think of innovative ways of improving reporting lines in order to keep up with their employees.
Beth Hale is partner and general counsel and Naomi Latham a trainee at CM Murray