Love contracts and other romance-related HR dilemmas

Robert Shore: Hello, and welcome to the XpertHR podcast. XpertHR is a comprehensive source of leading practice, employment law and benchmarking information for HR professionals, providing solutions and expertise for every HR role, challenge and opportunity. You can find us any time of the day or night at www.xperthr.co.uk. My name is Robert Shore, and I am delighted to be welcoming back to the podcast today Stephen Simpson, principal strategy and practice editor here at XpertHR. Welcome, Stephen.

Stephen Simson: Hi, Robert.

Robert Shore: Now, we’re recording this edition of the podcast in the run-up to Valentine’s Day where naturally one’s thoughts turn to…I was going to say pancakes because Shrove Tuesday or Pancake Day often falls around 14 February, but I’m going to say instead love and romance, as that’s a more pertinent workplace theme. And I say that because, Stephen, a significant number of people meet their partners at work, don’t they?

Stephen Simson: That’s right, Robert. So according to a YouGov poll, 15% of Brits meet their partner at work, which was the top method for hooking up. So that’s actually higher than meeting through mutual friends, which was 14%; meeting in passing, for example at a bar or pub, that was 12%; and meeting through a dating app – 8% of people meet that way. So those are some of the other most popular methods. But workplace romances are something that employers in the UK must regularly have to deal with, given it’s the top in that poll.

Robert Shore: Yes. Now obviously it’s wonderful when colleagues get on well, even very well, but there are, as you say, some aspects of workplaces romances that HR needs to be mindful of. So what are the issues that employers should be thinking about?

Stephen Simson: So I think there are three main issues facing employers. Firstly, the everyday rules and etiquette around relationships between colleagues, which some employers will choose to regulate in a written policy on personal relationships at work. Secondly, potential conduct issues, such as inappropriate behaviour from a couple at work. Potential conflicts of interest, for example if one of them is more senior than the other. Also potential breaches of confidentiality between the couple, and standards of behaviour expected if a relationship does actually end. And then the third one really is the issue of sexual harassment, particularly if romantic interest is not reciprocated.

Robert Shore: Yes. So taking those issues in turn, employers could have a policy in place setting out rules and etiquette around relationships between colleagues?

Stephen Simson: Yes, that’s right. Any employer could adopt a written policy of their own practice. It’ll probably mainly be larger employers. The policy should strike a balance between the employer’s need to protect its business interests and the right of employees to a private life, which will be limited if too many rules are placed on workplace relationships.

Robert Shore: So what sort of things might a policy on personal relationships at work cover?

Stephen Simson: So in the UK, the majority of policies are likely to take a lighttouch approach. They will make clear that a relationship between two colleagues is permitted, as long as their conduct doesn’t negatively affect their work.

Robert Shore: What sort of conduct might a policy flag up as inappropriate?

Stephen Simson: So a policy could have a broad ban on intimate behaviour during worktime, for example kissing, touching or holding hands. An employer would be on fairly safe ground if it states in the policy that a breach of this rule could lead to disciplinary action.

It’s important for the policy to apply at all levels of the organisation, including senior management, really just to reduce the risk of abuse of power.

Robert Shore: What are other areas of conduct that the employer might want to flag up in its policy?

Stephen Simson: The employer could also require employees in a relationship to keep communications in the workplace professional, where the couple may use their work email or other form of internal communication, such as messaging on Teams to send each other inappropriate messages or images. Employees in a relationship should be reminded, really, that communications may be monitored by their employer for legitimate reasons.

Robert Shore: And obviously there’s the possibility of breaches of confidentiality in certain relationships.

Stephen Simson: Yes. So I’d say there that employers need to be vigilant when it comes to employees giving away confidential information to their partner. An example of that could include an employee in a relationship with a colleague discussing with them the details of a personal issue of another employee whom they’re managing.

Another example might be an employee disclosing commercially sensitive information that should be limited to a specific part of the business to their partner, which you could see happening, say, if they work together for the same business but at different clearance levels, for example.

Robert Shore: Are there other warnings that you think, then, about conduct that such a policy could or even should include?

Stephen Simson: I think it’s really important to have something saying that striking up a personal relationship with a junior colleague will be inappropriate. For example, if a senior manager pursues a relationship with a junior member of staff over whom they may have a lot of power. It should be clear that a breach of any of these rules could lead to disciplinary action.

Robert Shore: Okay. So those are all sensible guidelines that employers can adopt. What if an employer wants to go further, though, and require an employee to inform it if they’re in a relationship with a colleague? Is that possible?

Stephen Simson: Yes. There’s nothing to stop an employer from requiring an employee to inform it of a personal relationship with a colleague, particularly if the relationship is with someone who is in the same department or someone who’s not the same level in the organisation, such as a line manager in a relationship with a nonmanager.

Robert Shore: Right. And if an employer requires relationships to be disclosed, what should it do if the couple doesn’t disclose and it finds out later?

Stephen Simson: If there is expected to be no conflict of interest, I’d say a brief informal chat between the employees and their managers, along the lines that the relationship should not affect their work, should be sufficient in those circumstances.

Robert Shore: Right. And what if there is a potential conflict of interest?

Stephen Simson: Yes, and that’s clearly going to be the case if one person in the relationship has managerial authority over the other, say. The employer should reserve the right in the policy when there’s a conflict of interest to elect to transfer one or both of them to another department or, for example, to change their reporting lines following consultation with both of them.

Robert Shore: We’ve dealt with colleagues here getting together, but what if there’s a subsequent break-up? Love is a fragile and tender bloom, after all.

Stephen Simson: Yes, so an employer could have a rule in its policy that employees in a personal relationship inform it if the relationship status changes, for example if the parties split up. That would give the employer a better chance to deal with any potential problems early on and to warn the employees of the behaviour expected, although of course in practice the employer may find that the employees are taking steps anyway to sort out the problem. For example, one or both of them might be looking for a new job or looking for an internal transfer because they’re no longer comfortable working with each other.

Robert Shore: Yeah. So what if there is a problem such as two colleagues who have broken up refusing to speak to each other, even though they’re supposed to be working together?

Stephen Simson: In those circumstances I’d say an informal meeting may be the best first step, followed by formal disciplinary action against one or both of them if their behaviour does not improve.

Robert Shore: Right. Let’s turn to some other thorny questions in this area and review some of the other rules of engagement. Firstly, is it ever acceptable for one colleague to compliment another colleague on their appearance?

Stephen Simson: So as so often is the case in the employment context, the answer is, it depends. For instance, a one-off compliment to a colleague that they look great or that they look particularly smart is unlikely to constitute harassment, particularly if they know each other well. However, if the comment is sexual in nature or in intrusive
or keeps happening, then that could definitely constitute sexual harassment.

Robert Shore: Okay. I think those are good basic rules there, aren’t they? The second question is, can it be sexual harassment to ask a colleague out on a date?

Stephen Simson: Again, as for the first question it depends on the context, really. For example, it’s unlikely to be harassment if an employee simply fancies a colleague at the same level and asks them out, even if the colleague does not feel the same way and says no. That is as long as the enamoured employee doesn’t persist and accepts the rejection with good grace. In those circumstances it’s unlikely to constitute harassment.

Robert Shore: But clearly there will be instances when pursuing a colleague romantically can constitute sexual harassment. That’s right, isn’t it?

Stephen Simson: Of course that would be the case if the lovestruck employee persists, even though their colleague has made their feelings clear. In addition, a manager asking a subordinate out might also constitute harassment even if it’s a one-off, as a tribunal is likely to take into account the imbalance of power between the two
parties.

Robert Shore: Right. The third question then. I’m going to refer here to XpertHR’s US site (we have a US site as well as a UK one). We have guidance there on employers having the option to require staff who start a relationship to sign a so-called “love contract”, and that’s an agreement in which they agree, in writing, that the relationship is consensual and that neither employee will bring a claim for sexual harassment against the other should the relationship end. So tell me Stephen, could a love contract work in the UK?

Stephen Simson: It’s an interesting concept and it’s a really good example, actually, of the cultural differences in workplaces in the UK compared with the US. However, from a UK employment law perspective, I’d say such an arrangement is unlikely to be workable. That’s because the Human Rights Act comes into play when an employer is seeking to control what employees are doing outside work. The right to a private life is relevant here, and it essentially means that an employer can control an employee’s actions only when they are working or where their actions have a direct impact on their employment. That’s a good rule of thumb. In any event, an employment tribunal is likely to find a love contract-type agreement to be unenforceable, as employers and employees can’t generally contract out a statutory claim such as sexual harassment except in certain limited circumstances, for example when signing a valid settlement agreement on termination of employment.

Robert Shore: Yes. So have there been any relevant tribunal decisions recently in this area?

Stephen Simson: So there are two cases from the past six months that are instructive for employers as to how costly it can be when things go wrong if they don’t deal with the issues around romantic entanglements in the workplace.

The first one I wanted to highlight is Tahir and National Grid. In that case, the employment tribunal awarded £357,000 to a female trainee who resigned after being frequently sent explicit messages from her mentor, including frequent propositions. She was also subjected to frequent unwelcome physical advances.

Robert Shore: Yes, and she won her claim.

Stephen Simson: Yes, and her successful case included claims for constructive dismissal, harassment and victimization. The employer in that case conceded that it didn’t deal properly with her complaints about the mentor, who remained in his role despite an investigation, and she was ultimately forced to resign.

Robert Shore: Yes. And the award – was there anything unusual about that?

Stephen Simson: The award included £40,000 for injury to feelings, which in the top band for injury to feelings compensation, which is reserved for the most serious cases of discrimination, and that top band is actually rarely given out. The case also included a rare award for aggravated damages set at £5,000.

Robert Shore: And you mentioned a second case, I think. What’s that?

Stephen Simson: Yes, so that’s Crabtree and Bandemer, in which an employment tribunal upheld sexual harassment and direct sex discrimination claims brought by a woman who claimed that her boss, in her words, bombarded her with messages often out of working hours and late at night, telling her that he loved her.

Robert Shore: Yes. Do we know how much the claimant was awarded in this case?

Stephen Simson: So the remedy judgement hasn’t been published at the time of
recording, but it’s been reported in the press that the claimant was awarded £99,214. So that’s a substantial payout in that case too.

Robert Shore: Mm. And there are plans to strengthen sexual harassment laws later in the year that employers will need to prepare for too, aren’t there?

Stephen Simson: That’s right. October 2024 will see the introduction of the specific new duty on employers to prevent sexual harassment in the workplace. The new duty will be supported by updated guidance from the Equality and Human Rights Commission on sexual harassment at work.

Robert Shore: Yes. This is the Worker Protection Amendment of Equality Act 2010 Act 2023, I think, which provides for a positive duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment, and also provides tribunals with the power to increase compensation by
up to 25%, I think, where a claim of sexual harassment is upheld and the employer has breached this duty. So is there anything that employers should be doing now to prepare for the introduction of this legislation?

Stephen Simson: I’d say now’s a good time to review organisations’ strategy for dealing with sexual harassment in the workplace. Even if you already have an anti-harassment policy in place, the focus of this can be ensuring that the policy is being implemented in practice, particularly when it comes to ensuring that complaints are dealt with promptly and effectively, and that appropriate training is given to staff so that they understand what behaviour is acceptable in the workplace and what is not.

Robert Shore: Yes. I think that’s a really good note – the importance of good training – on which to end this conversation, this edition. Before I do that, I’d just like to thank Stephen again for his insight. Thank you, Stephen.

Stephen Simson: Thanks.

Robert Shore: And to direct you, dear listener, to some associated resources on the XpertHR website. Links to these are provided in the show notes. Until next time.