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The almost incredible findings of a serious piece of employee research conducted by Lloyds TSB have sent a shiver of disquiet around many a British boardroom. No less than 71 per cent of their respondents admitted to having had an office romance with a fellow employee. Thirty per cent of employees questioned met their future marriage or life partner at work and an astonishing ten per cent admitted to having had sexual relations with their immediate superior.
Perhaps more astonishing still, 30 per cent of the employees sampled admitted that they would have sexual relations with their superior if the relationship would have a positive influence on their career or earnings. And this comes from the supposedly staid and conservative banking sector - hardly known for frivolity, passion and abandon. The mind boggles at the results that might have arisen from an outwardly less stuffy sector.
Far from being a show business myth, the casting couch appears to have become a universal office fixture, this time relocated to the managers’ private conference suite. Given the shift in attitude to religious observance, personal morality and sexual promiscuity over recent decades, these results should be less surprising. The sexual revolution that followed from simultaneous advances in both birth control and sexually transmitted disease treatment in the sixties is now two generations away.
Those bombarded with constant images of romantic and sexual profligacy by the popular media are unlikely to practice or preach the puritanical doctrines of what is now a bygone age. Employees are much less likely to hide their desires and feelings than their grandparents and much more likely to do something about it than their parents.
The question for HR professionals is where the lines need to be drawn in this new order. The distinctions between harmless flirtations, deliberate efforts to precipitate sexual relationships and sexual harassment at work are still vague. Also, one person’s flirting may be another’s harassment. For employers, putting the wrong interpretation on these events can prove to be a very costly mistake.
Employers are finding themselves trapped in a triangular web of legislation, caught between the Human Rights, Employment and Sexual Harassment statutes. It is unlawful to discriminate against an employee (or prospective employee) on the grounds of their gender or sexual orientation. It is also unlawful to infringe upon someone’s right to express their beliefs. Yet, conversely, if employees exercise these same rights to the extent that they occasion distress toward another employee, in an emotional or sexual context, the possibility of a harassment claim raises it’s head. Taking precipitate action against those deemed guilty of misconduct is likely to spark an unfair dismissal claim. What on earth is the well-meaning employer to do?
In the birthplace of the litigation and compensation culture - the US - for approximately ten years now, the answer has come in the form of Consensual Relationship Agreements drawn up as part of an employment contract. The purpose of these agreements is to separate the relationship from the workplace. Employees are asked to sign a document indicating that in the event of the relationship ending, there is no claim against the company and any litigation that ensues is purely between the individuals themselves.
Knee Jerk Reaction
What about the UK? First, let’s look at what we may need to govern. As far as I see it there are two situations that need to be looked at:
Where a manager goes out with a subordinate and appears to ‘favour’ that person.
Where a couple splits up and there is fallout, possibly with allegations of sexual harassment being made.
The knee jerk reaction is to say that all workplace relationships should be banned. There are two problems with this. First, that there may well be Human Rights Act implications. Article eight opens up an entirely different line of argument, too complex to touch on here. Secondly, it ignores the fact that people are always going to have a workplace romances, as the statistics show.
In these more enlightened times the romances need not necessarily occur between members of opposite sexes, either. Anti-discrimination law now extends to those in the workplace with a differing sexual orientation, adding a further furrow to employers’ brows.
There is absolutely no way of controlling the way humans being secretly feel about each other. Those who experience an attraction for a work colleague will be attracted, whether employers like it or not. Rules and contracts can have an influence on what they do about it - and their subsequent conduct in relation to their work - but the inherent inclination of employees to behave differently towards someone they find attractive is not going to change. It is fundamental human behaviour.
The answer would therefore appear to be a ‘balancing act’ between preventing abuses in the workplace from taking place, on one hand, whilst recognising that romances will occur, on the other.
Therefore I would recommend that companies have a sexual harassment policy in place and ensure that all employees are aware of it. Make employees aware of the need to raise a grievance, without delay, if there has been any harassment. This is especially important in light of the changes that came into force in October.
Employers consider whether to regulate relationships between managers and direct subordinates, as there is a greater risk of abuse or a conflict of interest arising. However, if you are considering such a policy then be very careful about how it is drafted so that it does not fall foul of sex discrimination laws. What percentage of your managers are men? What percentage of subordinates are women? Received management wisdom on the subject is that it is more prudent to move the subordinate, on the grounds that more company money has been spent on recruiting and training the manager. Moving the subordinate will be less expensive and also be less disruptive. This may be a dangerous tactic. Statistics show that men hold the majority of managerial positions so there may well be indirect sex discrimination implications.
Only 20 per cent of UK companies presently have policies in place to govern relationships in the workplace. Rather dangerous when you consider that there is the prospect of uncapped damages being awarded. There is a strong case for addressing this issue, without delay, at the employment contact stage. Carefully constructed Consensual Relationship Agreements can go a long way toward protecting organisations from the worst consequences of mishandling this perpetual management dilemma.
Some timely legal advice from an employment law specialist and a little HR management time spent bringing employee contracts into line with recently introduced legislation could prevent some very expensive trips to the Employment Tribunal or the courts. Where the inevitability of office romances is concerned, the new received wisdom is that forewarned is forearmed.
Ian Lewis, partner at national law firm Rowe Cohen. For further information telephone 0207 332 2235.
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