In October, employers must ensure they protect workers from third party sexual harassment by law. But what does this mean for workplace relationships and policies around them? Rustom Tata looks at the issues.
From 26 October 2024, employers will have a new positive legal obligation to take reasonable steps to protect their workers from sexual harassment. Sexual harassment means unwanted conduct of a sexual nature.
With such a high proportion of relationships outside of the workplace going sour and ending in divorce or separation, is there any basis to expect that relationships formed or continued in the workplace will fare any better?
Employers will also be wondering how they will deal with any, initially consensual, relationships that may be formed with customers or suppliers or other third parties which can also give rise to liability for an employer?
The revised guidance from the Equality and Human Rights Commission (EHRC) makes clear that the new duty is a ‘preventative duty’, which means that it requires employers to anticipate scenarios where its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place.
Employers’ duties
An employer who fails to do this may be subject to enforcement action by the EHRC as well as the more publicised risk of increased compensation being awarded to the employee by an employment tribunal.
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Surely no employer in the modern age would support any form of abuse of a staff member, and the new provisions apply not only to sexual harassment by co-workers, but also by third parties such as customers, suppliers and even members of the public.
But what can or should an employer do in the context of workplace relationships?
While the preventative duty only (emphasis added) applies to sexual harassment that takes place in the course of employment, most employers and HR departments will know that what is considered to be included “within the course of employment” can be uncomfortably broad (office party, client event, “team on team” relationship-building exercises).
As with most risks, an assessment needs to be carried out, and any preventative steps identified and reasonable ones implemented.
Do we need relationship policies?
But is the tide turning? Should UK employers consider US style “anti-fraternisation” policies, and if so, how might such a policy be implemented and how far should they go?
Most employers would expect to seek to separate employees in a newly formed relationship where one is a direct report of another. Employers and employees recognise the risk of abuse of a power imbalance, both during and at the end of a relationship.
However, all cases of an intimate relationship between two colleagues risk negative impact on their own work, relationships with colleagues, and with third parties.
Employers will also be wary of sex discrimination claims if they treat one party to the relationship differently to the other, particularly by taking account of seniority.
But fewer employers have placed a positive duty on their employees to report a relationship (BP is that latest high-profile example to have belatedly introduced such a policy), and even fewer place an outright ban on relationships.
Up until now, a ban has been said to be too restrictive. Article 8 of the Human Rights Act 1998 provides the right to respect for a private and family life (although it is often overlooked that this right is not an absolute, unqualified one, with the protection of the rights and freedoms of others being an explicit basis on which to vary the right).
Change in approach
With the change in the law, and greater liability on employers, some may want to move towards a more restrictive approach.
As with any change, communication with employees will be important. Some may see this simply as a way of reducing an employer’s risk of claims, so it needs to be explained that the underlying legislation is indeed designed to protect employees, and one part of that protection is setting greater clarity around what is expected between work colleagues.
Of course, all of the usual other measures, such as training, monitoring and confidential support need to be put in place and applied to this potentially difficult area.
One particular area of risk for employers relates to safeguarding information regarding personal relationships. This must of course be handled sensitively, to take account of the duty of trust and confidence, as well as in accordance with GDPR requirements.
In the context of relationships with customers, suppliers or other commercial contacts of the employer, the position is even more problematic.
Furthermore, while this will not apply in the case of every workplace relationship, there will no doubt be instances where one or both parties involved, will have other close personal relationships away from work.
The employer would have a duty of care to ensure that those relationships are not directly damaged as a result of information shared within the workplace.
In the context of relationships with customers, suppliers or other “commercial contacts” of the employer, the position is even more problematic. While the likelihood of such relationships is lower, both the risk of the power imbalance and that of the relationship souring are at least as great.
Just as with intra-staff relationships, employers will need to carefully map the risks and consider preventative measures that might be taken, and it is hard to see that this area can be left untouched as part of an employer’s review in light of the new law.
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