A worker at a whisky shop has lost her sexual harassment claim after a court ruled that a ‘air kiss” did not constitute unwanted sexual conduct.
Ms Chen started working at Cut Your Wolf Loose Whisky Bar in Brighton in September 2021. She worked with Mr de Newtown who was the assistant manager and later the general manager of the shop, as well as Mr Woolf the owner and director.
The shop was staffed by five people, including Chen. The shop is quiet during the day – the staff are busy organising bookings, sending out mail orders and preparing tastings.
The employment tribunal heard over the months that Chen and De Newtown had a positive, open working relationship. De Newtown walked Chen from his house to hers on occasion.
In December 2021, the claimant complained to Woolf that Mr Standen had been racist toward her. Woolf told de Newtown that “if this is true, I will ask him to leave immediately.”
Chen and Zach, a non-binary colleague, had a strained working relationship. Chen claimed that Zach didn’t like her due to his race. Zach, however, filed a complaint in February 2022 against Chen after they had a discussion about Zach’s sexuality.
Chen said she would resign from her position in April 2022 because she felt underappreciated by her colleagues and didn’t like how they treated her. Woolf told de Newtown via WhatsApp that Chen “always had problems”. The tribunal heard Woolf allowed Chen to resign against de Newtown’s wishes.
Leave the store
The situation reached a boiling point on Saturday, 3 September 2022 when Chen had been assigned to work double shifts. Chen informed Woolf that she was hungry at 4:00pm. He said he’d be back five minutes later after making a phone call. Woolf saw her leave the store unattended while customers were inside. He went up to Chen and told her not to leave the shop.
Chen worked a very busy shift. Woolf, who was upstairs in the apartment, sent two messages to offer help. Woolf went down to the bar after closing at 10:30pm. Chen became upset with him and asked a series questions, including why he hadn’t come down to her aid. She said she wasn’t prepared to work when she thought she was doing the work of three people and that she should be paid for three peoples’ wages.
De Newtown and Woolf then sent Chen an email the following week regarding the issue of leaving Chen’s shop unattended. The letter also claimed that Chen had served alcohol underage clients and spoke disrespectfully to her colleagues. She raised a grievance to defend her actions.
De Newtown sent Chen an email dismissing her on 12 September. According to the reason, it was because her grievance clearly showed that she didn’t see any fault in herself and that, therefore, there was no basis for moving forward constructively. Chen was put on a month’s garden leave.
She attended a bar tasting that evening. Chen went to de Newtown behind the bar and told him about her dismissal. The tribunal heard that Chen tried to test Mr de Newtown’s whisky knowledge by asking him to recommend several drinks, which each she rejected. The judge found she was doing this to humiliate him in front customers.
Air kiss
Chen questioned whether she was given enough notice to terminate her employment at a meeting on the next day. She also brought up the incident that occurred the night before in the bar. At the end of the discussion, Chen accused de Newtown for trying to kiss her as he was walking her home.
The judge stated that the oral testimony of both individuals was directly contradictory. The judge said that the two individuals were in agreement that the man walked the woman home and hugged her, but de Newtown claimed that the claimant received an air kiss while the other person said he kissed the neck of the claimant on two separate occasions during the first month she worked at the shop.
He refused to accept that Woolf was contacted by the claimant before the 13th September 2022.
The judge stated in his decision that he believed the most probable factual scenario was that Mr de Newtown kissed the claimant after hugging and that the claimant misinterpreted it as a sexual advancement.
He said: “I found Mr de Newtown a straightforward and honest witness.” The claimant’s testimony has been inconsistent on a number levels.
The judge continued, “I don’t consider an air kiss to be unwanted sexual conduct. If it’s sexual, then it’s not at the level where, even with the claimant in mind, it would be reasonable to expect it to have an effect on her. The claimant did not provide any evidence to support the effect that was prescribed on her. “As stated above, it appeared that she had an openly friendly future relationship with Mr de Newtown.”
Chen’s complaint of sexual harassment, along with other claims such as one for race-related harassment and another for breaching a contract related to pension contributions was dismissed.
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