Partner Susan Thompson and Associate Andrew Czechowski examine whether workplace relationship policies are prudent measures, or whether employers are being overly cautious, in Solicitors Journal.
Following recent publicity of a number of high-profile media presenters having relationships with junior colleagues and/or other younger individuals, ITV has issued a ‘personal relationships at work policy’ to all staff last month. This requires ITV staff to declare personal relationships they have with colleagues, which includes “a person living in the same household” and “anyone involved in a sexual, romantic or close relationship or friendship (whether short or longer term).” The policy continues: “if a personal relationship exists between you and another colleague (whether it started prior to or during the course of your employment or engagement with ITV), both parties must disclose this to the company at the earliest opportunity.” It has been reported that ITV workers who fail to do so could risk facing disciplinary action or even risk losing their job.
From an employer’s perspective, it is certainly prudent to have a relationships at work policy, so long as it goes no further than is necessary to protect its business interests. Indeed, a relationships at work policy is not a new concept and they have been used for many years, for example, in the financial services industry.
Having such a policy might protect an employer from employees raising grievances and bringing employment tribunal claims for unfair dismissal. For example, where two employees work closely together, the breakdown of a personal relationship might result in the complete breakdown of the working relationship, affecting the employees involved, their colleagues and the workplace as a whole. An employee may resign and claim constructive dismissal on the basis that there has been a breakdown in trust and confidence between the employer and employee (and/or their colleagues). Alternatively, a relationship breakdown may lead to performance or conduct issues arising, which may require the employer to take disciplinary action and/or to an employee being dismissed.
In exceptional circumstances, harassment could arise where one employee is keen on resurrecting the relationship and makes repeated unwanted overtures. It is important for employers to note that The Worker Protection (Amendment of Equality Act 2010) Bill received Royal Assent on 26 October 2023. As a result, from 27 October 2024, employers will be subject to a new proactive duty to take reasonable steps to prevent sexual harassment in the workplace. This signifies a shift in sexual harassment legislation. Currently the law focuses on redress (i.e. by allowing employees to bring claims against it when they have received unwanted conduct that has created an intimidating, hostile, degrading, humiliating or offensive environment), not prevention. If it is proven that the employer breached its duty to take reasonable steps to prevent harassment of its employees, an employment tribunal may order that it pay a compensatory uplift on any compensation awarded to a successful claimant, to reflect the extent of the breach. This new uplift can amount to up to 25% of compensation awarded, which could potentially be quite significant given that compensation for sexual harassment is uncapped.
An expectation on an employer to take reasonable steps to prevent sexual harassment will require employers to consider either implementing or amending (and raising awareness of) their dignity/respect at work policy, an anti-harassment policy and/or a relationships at work policy. Employers should also consider training employees on these policies, so that they are left in no doubt about what the company considers appropriate conduct. This will effectively require employers to communicate a zero-tolerance approach to harassment as well as informing employees how they can report instances of sexual harassment anonymously. As a result, employers should have (or develop) clear and trusted reporting mechanisms to enable employees to safely raise concerns that they are being sexually harassed at work. Having clear policies and procedures in place will assist an employer with collating evidence during employment tribunal proceedings that it took reasonable steps to prevent sexual harassment in its workplace.
In addition to protection from employment tribunal claims, a relationships at work policy will help employers combat favouritism and nepotism in the workplace. A personal relationship could potentially influence remuneration or career prospects. It could be that, for example, a senior member of staff who is responsible for deciding salary reviews, bonuses and promotions is having a relationship with another more junior member of staff. A relationships at work policy would require disclosure of that relationship and could assist the employer with objectively assessing a recommendation for a salary review, bonus or promotion, or by ensuring that if a staff member is having a relationship within their reporting line, that they no longer be involved in any decisions regarding that staff member’s remuneration or career progression.
Whilst it is sensible for employers to have a personal relationships at work policy, employers should be mindful of possible complaints made by employees that such a policy may interfere with their right to privacy pursuant to Article 8 of the Human Rights Act 1998. However, provided that an employer can demonstrate that it protects its business interests and goes no further than is necessary, an employer can defeat such arguments. By contrast, an absolute ban on having personal relationships with work colleagues may be a breach of an employee’s Article 8 right, as will a ban on friendships.
ITV’s policy goes further than most in requiring employees to declare close personal friendships “at the earliest opportunity”. This makes the policy much wider than those which relate solely to relationships of a sexual and/or romantic nature. Perhaps, it could be that ITV is seeking to also capture other intimate relations which are not formally considered to be relationships. However, including ‘friendships’ may cause difficulties, as employees are likely to have numerous personal friendships with work colleagues and these may develop over time. Having an ever-evolving requirement to declare close friendships may become an administrative burden and difficult to police, as the idea of what constitutes a friendship can be very subjective. Requiring employees to disclose friendships to HR or line managers may also run the risk of disincentivising colleagues from making friendships. Friendships are likely to be positive from the employer’s perspective, as they engender team building and a collegiate environment. Therefore, whilst it is generally prudent to have a relationships at work policy, the requirement to have staff disclose all friendships could be considered excessive and unnecessary. In the alternative to capturing friendships, a relationships at work policy could instead require staff to disclose whether they have family members in the company (such as siblings, aunts, uncles or cousins), or other significant relationships beyond ordinary or casual friendships.
Susan and Andrew's article was published in Solicitors Journal, 14 December 2023, and can be found here.