Ted Baker: does hugging amount to harassment?

11th December 2018 Employment

A petition signed by 200 employees of Ted Baker has called for an end to the culture of “unchallenged harassment„, in which founder and owner Ray Kelvin reportedly asks younger female members of staff to sit on his knee, cuddle him and allow him to massage their ears.

In their response to the petition, Ted Baker have commented: “Ray greets many people he meets with a hug, be it a shareholder, investor, supplier, partner, customer or colleague. Hugs have become part of Ted Baker’s culture, but are absolutely not insisted upon„ but is this an acceptable defence and do Mr Kelvin’s actions in fact amount to harassment?

The definition of harassment

The general definition of harassment is found at section 26(1) of the Equality Act 2010 (“EqA„):

A person (“A„) harasses another (“B„) if A engages in unwanted conduct related to a relevant protected characteristic (age, disability, gender reassignment, race, religion or belief, sex and sexual orientation) which has the purpose or effect of either:

i. violating B-s dignity, or
ii. creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

There is a further strand of harassment that specifically refers to conduct of a sexual nature, which can be found at section 26(2) EqA:

A harasses B if A engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect referred to in the general definition (defined in section 26(1)EqA)

When deciding whether or not the unwanted conduct has the effect referred to in section 26(1) EqA, there must be consideration given to:

  1. the perception of B;

  2. the other circumstances of the case; and

  3. whether it is reasonable for the conduct to have that effect.

Based on the above, Ted Baker’s defence of ‘it is part of the culture’ is irrelevant as it is actually the effect of the unwanted conduct on B that is the focus regardless of the intention of A. Whether or not the effect is reasonable will depend on each of the individual allegations, but it seems unlikely that 200 members of staff are all acting unreasonably.

In an article by Anne-Marie Slaughter in the Financial Times at the height of the #Metoo campaign, she focused on the fact that harassment is rooted in power imbalances. Further, she commented that “harassment continues not because men do not know sexual harassment is wrong, but because they do not believe they will be caught or punished„. This is applicable here, as although Ted Baker have raised the fact that the hugs are not insisted upon, as Mr Kelvin is the founder and Owner of the company, some young or junior members of staff may feel obliged to accept the advances.

Lessons to be learnt for employers

The employees who have launched this petition go on to claim that there have been over 50 reports of harassment to the HR department that have either been ignored or dismissed. This is a shockingly high number, and it is important for employers to learn from Ted Baker’s mistakes.

As a general rule, prevention is better than cure, and we have set out 5 key considerations for employers to prevent harassment in the workplace:

  1. Harassment policy employers should ensure they have a harassment policy in place that sets out the actions that will be taken if a member of staff is accused of harassing another member of staff.

    Further, the policy should also explain how a member of staff can report harassment. To avoid members of staff feeling trapped and unable to report harassment where the harasser is their manager, there should be a variety of people they can turn to and an open door policy should be encouraged.

  2. Awareness employers should ensure that all members of staff are aware of the harassment policy. Effective methods include sending the policy round in a memo to all staff, or storing the policy in a hard drive accessible to all.

    The policy should be reviewed and updated as appropriate and re-circulated periodically.

  3. Training employers should implement internal training sessions for members of staff to educate them on the definition of harassment. This should also include clear examples of what will and won’t constitute harassment and how to be respectful to other colleagues.

  4. Investigate where a harassment allegation is raised the matter should be taken very seriously and investigated thoroughly. An employer should gather any relevant evidence and go on to decide if disciplinary action is appropriate.

    Failure to deal with allegations appropriately may result in:

    a) the demotivation of staff which could lead to an increase in sick days and staff turnover;

    b) the loss of trust between an employer and its members of staff;

    c) the risk of a harassment claim being brought against an employer which could be expensive and time consuming to defend; and

    d) the risk of poor publicity for an employer at a time when harassment is in the limelight and does not go unnoticed.

  5. Sanction appropriately following a thorough investigation and subsequent disciplinary hearing (if appropriate), an employer should decide what sanction is appropriate. Generally, if proven, harassment would be considered as a gross misconduct offence which could lead to dismissal, however, each case will turn on its individual facts and other sanctions may be more appropriate in some circumstances.

    Where there is a negative office culture, it may be necessary for an employer to use dismissal as a deterrent to stamp out harassment.

To talk to our employment team about any issues raised in this blog please do not hesitate to call 0345 872 6666.

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Ian Tranter is a Partner located in Manchester in our Employment department

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