A whisky shop worker has lost her claim for sexual harassment after a judge ruled that an ‘air kiss’ did not amount to unwanted conduct of a sexual nature.
Ms Chen began working at the Cut Your Wolf Loose whisky bar in Brighton when it opened in September 2021. She worked for Mr de Newtown, assistant manager, who later became the shop’s general manager, and Mr Woolf, the owner and director.
Five people worked at the shop, where Chen worked alongside her studies. During the day, the shop is relatively quiet – staff send out mail orders, organise bookings and prepare tastings for that evening.
Over the subsequent months, the employment tribunal heard that Chen and De Newtown maintained an openly positive working relationship. De Newtown would occasionally walk Chen to her flat as it was en route to his home.
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The claimant made a complaint to Woolf in December 2021 that Mr Standen, the then general manager, had been racist towards her. Woolf informed de Newtown saying “if it’s true I’ll be asking him to leave today.”
Chen had a strained relationship with another colleague, Zach, who is non-binary. Chen alleged that Zach did not like her because of her race, but Zach raised a complaint against Chen in February 2022 after a conversation regarding Zach’s sexuality.
Chen intended to resign in April 2022, saying she felt unappreciated and did not like the way her colleagues treated her. Woolf commented to de Newtown by WhatsApp that Chen had “always got problems”. The tribunal heard that, against de Newtown’s wishes, Woolf later allowed Chen to retract her resignation.
Leaving the shop
Matters came to a head on Saturday 3 September 2022, when Chen was on the rota to work a double shift. At 4:00pm, Chen told Woolf she was hungry. He told her he would be back in five minutes after he made a call. Woolf then witnessed her leave the shop unattended, while there were customers inside. He approached Chen to discuss what he had seen and to say she should not leave the store.
Chen continued to work a busy shift. Woolf was in the flat upstairs and messaged to offer to help on two occasions. After closing around 10:30pm, Woolf came down to the bar. Chen was upset and asked him a series of questions including why he had not come down to help her. She implied she was not prepared to continue working when she felt she was doing three people’s work and should be paid three people’s wages.
The following week, de Newtown and Woolf sent an email to Chen on the issue of leaving the shop unattended. It also alleged that she had served alcohol to underage customers and that she spoke to colleagues disrespectfully. She responded by raising a grievance defending her actions.
On 12 September, de Newtown sent an email to Chen dismissing her. The reason given was that the grievance made it clear that she did not see fault on her part and, accordingly, that there was no basis on which they could move forward constructively. Chen was effectively put on garden leave for one month.
That evening, she attended a tasting at the bar. Chen went behind the bar to speak to de Newtown about her sacking. The tribunal heard how Chen then sought to test Mr de Newtown’s knowledge of whisky by asking him several times to recommend a drink, each of which she rejected. The judge found that she did this with a view to humiliating him in front of customers.
Air kiss
At a meeting the following day, Chen queried whether she had been given sufficient notice of termination. The incident the night before at the bar was also discussed and at the end of the meeting, she accused de Newtown of having tried to kiss her when he walked her home.
The judge said that this was by some way the most difficult aspect of the case given the directly contradictory oral evidence of the two individuals. It was agreed that he walked her home and that they hugged, but de Newtown said that he gave the claimant an air kiss, while she said he kissed her intimately on the neck on two occasions in the first months of working at the shop.
He did not accept that the claimant raised the allegation with Woolf at any point before 13 September 2022.
In his tribunal decision, the judge 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.”
He added: “I broadly found Mr de Newtown to be an honest and straightforward witness. By contrast, the claimant’s evidence has been inconsistent in a number of ways.”
The judgment continued: “I do not consider that an air kiss is unwanted conduct of a sexual nature. Alternatively, if it is sexual, it is not at a level, even taking into account the claimant’s perception, where it was reasonable for it to have the prescribed effect on the claimant. The claimant has not really set out evidence as to the prescribed effect on her. As set out above, she appeared to have an openly friendly relationship with Mr de Newtown going forwards.”
Chen’s claim for sexual harassment was dismissed, as were other claims including one for harassment related to race and a claim for breach of contract in relation to pension contributions.
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