An office romance has turned bad and now one of the parties is alleging sexual harassment. As he was in a romantic relationship with his female colleague for quite a few months beforehand I am unsure about his rights and our responsibility as an employer to step in. What should we do?
Resources on office relationships and sexual harassment
The definition of sexual harassment
This is not an uncommon situation – according to some estimates, around 70% of employees have had a relationship with a work colleague. However, not all of them work out and, under the Equality Act 2010, it is unlawful to harass someone simply because they rejected unwanted conduct of a sexual nature. So whether or not your employee willingly entered into a relationship with his colleague makes no difference: he can still bring a claim for harassment if she behaves in an unwanted manner that violates his dignity or is intimidating, humiliating, hostile, degrading or offensive because of his relationship with her.
Harassment means behaviour that is specifically intended to cause just that, or which is perceived as harassment by a colleague. Harassment in the workplace is entirely unjustifiable and you risk an employment tribunal claim.
Handling sexual harassment complaints
It sounds like your employee has already formally complained about how his female colleague is treating him. You must therefore immediately investigate his complaints under your bullying and harassment procedure. If you haven’t got an appropriate policy in place (you should!), consult the Acas code and guidance. If your investigation concludes that your female employee has a case to answer, you should begin a disciplinary process and, if warranted, impose an appropriate sanction.
Being seen to be dealing with a workplace harassment issue appropriately and immediately is half the battle and should minimise the risk of a tribunal claim. Importantly, tackling the issue head on will also go some way in deterring others from following suit.
This is a good opportunity for you to communicate your organisation’s policies on bullying and harassment. Make it clear to all employees that such behaviour is completely unacceptable. Doing so will enable you to more easily discipline employees who breach your policy in the future. A well drafted and maintained policy can also act as a defence to legal proceedings should you ever be faced with them.
The Equality Act 2010 protects employers who are able to demonstrate clearly that they took all reasonable steps to prevent their employees from acting unlawfully. Ideally, you should have a suitable policy in place that complies with the guidance from Acas and the Equality and Human Rights Commission. Making a senior member of staff responsible for the policy is a wise move, as is providing regular training to all employees that makes it clear that discrimination is not acceptable.
Rachel Blythe, partner, Simpson Millar LLP