When might a kiss be unlawful in UK employment?

Spain's recent Women's World Cup win has been overshadowed by adverse publicity after Spanish football federation president Luis Rubiales, kissed forward Jenni Hermoso on the lips.

Fifa decided to "provisionally suspend Mr Luis Rubiales from all football-related activities at national and international level" and the police are investigating whether the kiss amounts to sexual assault.

It may be timely for employers to consider when a kiss could breach UK employment law. Sexual harassment in the workplace is prohibited by s.26 Equality Act 2010 ("the Act").

The following conduct would amount to sexual harassment under the Act:

• A engages in unwanted conduct of a sexual nature; and
• The conduct has the purpose or effect of either violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

As such it does not matter if A did not intend to offend B if the conduct had that effect, although Employment Tribunals will consider if any offence taken by B was reasonable.

The EHRC guide advises that unwanted conduct of a sexual nature includes unwelcome kissing, touching, hugging, or massaging. As such a kiss could amount to sexual harassment if "unwelcome" and the victim reasonably took offence. In deciding whether it was reasonable for a kiss to cause offence (or any other prohibited effect) an Employment Tribunal would usually consider the context, which may involve the following considerations:

• How intense or intimate was the kiss?
• Is there a power imbalance between the parties (i.e. is the alleged victim subordinate to the perpetrator)?
• Is there evidence that the alleged victim has engaged in similar conduct themselves? For example, if the alleged victim routinely greets colleagues with a kiss, then if one person reciprocates it would be difficult to claim that this was offensive.

Employers should remember that they can be vicariously liable for sexual harassment, unless they have taken all reasonable steps to prevent such discrimination occurring. Reasonable steps are likely to include providing guidance in a policy, training staff, and thoroughly investigating any allegations. Should you need any assistance with these steps our team of specialist employment solicitors are available to assist.

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