Valentine’s Day may be marketed as harmless fun, but Andrew Macaulay‑Ferguson, Assistant Solicitor from York-based firm Hethertons, says it often exposes employers to legal and reputational risk if boundaries are not properly managed.
Under new legal duties now in force under the Worker Protection (Amendment of Equality Act 2010) Act 2023, employers are expected to take active steps to prevent sexual harassment before it happens, rather than waiting to deal with complaints after the fact.
“The duty is both anticipatory and ongoing,” says Andrew. “Employers are no longer judged solely on how they respond when something goes wrong. They are expected to think ahead and take reasonable steps to stop harassment from happening in the first place.
“The duty applies across all workplaces, but what counts as reasonable will depend on the size and resources of the business, the nature of the work and the risks staff are exposed to. There are no particular criteria or minimum standards that an employer must meet.”
Where employers fall short of their obligations, the consequences can be serious.
“Employment tribunals now have the power to increase compensation in sexual harassment cases by up to 25 per cent where an employer is found to have breached the duty.
“The Equality and Human Rights Commission can also require employers to put formal action plans in place and seek a court injunction against the employer if deemed necessary.
“The most visible consequences are often the reputational damage and the damage to employee relations, which take a very long time to repair, if at all,” says Andrew.
The duty to prevent sexual harassment does not stop at behaviour between colleagues. Employers are also expected to take reasonable steps to protect staff from harassment by clients, customers and other third parties.
Andrew says many employers struggle to address the issue because sexual harassment remains under-reported.
“It is hard for a business to take steps to prevent sexual harassment without knowing the extent of the problem.
“Sexual harassment is statistically under-reported in the workplace, in part due to organisations not making it clear that complaints would be dealt with seriously and sanctions applied, not to mention fears of victimisation and protection offered towards perpetrators. Therefore, it is important to understand where to start and what steps should be taken.”
Risk assessments and staff surveys are often a good starting point to determine the extent of the potential problem for the business.
Certain working environments, such as hospitality, lone working or client meetings in isolated settings, carry higher risks.
“If staff are frequently left alone with suppliers or clients, or there’s a regular customer who makes unwanted comments, those are clear risk areas that can quickly become an employer problem,” Andrew says.
“Employers can make it clear that sexual harassment will not be tolerated by including this in contracts, booking confirmations or visitor information, which can be particularly effective for hospitality settings.”
Above all, he stresses the importance of action.
“Complaints need to be taken seriously and dealt with properly. Commercial sensitivity is not a defence for inaction.”
However, it’s not just sexual harassment that employers need to be mindful of. Another contentious topic is that of workplace relationships, which can also cause problems if they are not handled carefully.
Despite the risks, blanket bans on workplace relationships are unlikely to be the answer.
“In some countries, such as the USA, employers use so-called ‘love contracts’ to manage workplace relationships,” Andrew explains.
“These confirm that a relationship is consensual, that both parties will comply with codes of conduct in the workplace and that they take responsibility for any damage it causes to the business. While this can seem like a good idea in theory, such agreements can feel coercive, raise privacy concerns, and may be misused or difficult to enforce, particularly if a relationship later breaks down.”
Some employers still believe a zero-tolerance approach is the safest way to avoid problems.
“A zero-tolerance approach often fails to account for the nuances of workplace relationships and can be disproportionate,” Andrew says. “An outright ban can interfere with employees’ right to a private life and may simply push relationships to be hidden.”
Tribunals are unlikely to look favourably on total prohibitions, particularly where no genuine workplace risk exists. Issues are far more likely to arise where there is a power imbalance or where boundaries are unclear.
“Most problems with workplace relationships arise because the employer has not planned how to manage them, not because they exist.”
Instead of imposing bans or using the “love contract” method, Andrew says employers should focus on clear rules and transparency.
“Rather than an outright ban, employers should introduce a relationships at work policy. This is a more nuanced approach, requiring staff in personal relationships with colleagues to follow a set of rules and obligations. Most policies will include a requirement to inform their line managers of the relationship, whilst outlining which behaviours are appropriate for work.
“If people feel able to be open, it becomes much easier to spot potential conflicts of interest and distinguish consensual relationships from situations that cross a line,” Andrew adds.
“It also means that if a policy exists, and the policy is breached, this breach then creates a potentially fair reason to discipline staff, whilst reminding them of the expected standards of behaviours at work.”
Valentine’s Day itself can bring tensions to the surface. What one person sees as light-hearted flirting can be experienced very differently by someone else.
“The test is not intention,” says Andrew. “It is how the behaviour is received. Gifting someone a box of chocolates or a bouquet of flowers, simply on its own, is unlikely to be deemed sexual harassment, though it is not impossible. The circumstances and context in which they are being given matters and can affect the perception of the behaviour. However, unwanted comments, jokes or attention can easily cross into harassment territory.”
Some employers choose to remind staff ahead of Valentine’s Day about appropriate workplace behaviour and encourage cards or gifts to be exchanged outside of work.
The growing trend of “work spouses” has also raised concerns.
“Whilst positive working relationships can keep businesses productive, there are a number of risks associated with the concept of a work spouse,” explains Andrew.
“For example, if a work spouse has influence over the other’s career progression, this could create issues, given the supposed lack of impartiality. Similarly, this could lead to suggestions of, or actual, favouritism or bias if two employees appear to be working as a team against other members of staff, which could lead to grievances about the work spouses or a reduction in morale.
“There is also the concern that whilst a work spouse relationship might start as non-sexual and solely platonic, all it takes is for one member to give unwanted attention to the other and cross the line into harassment and then disruption and a very uncomfortable situation will ensue.”
Regular training on boundaries, consent and respectful behaviour remains one of the most effective ways to reduce risk.
“Mandatory training on sexual harassment is incredibly important,” he says.
“Staff need to understand what amounts to harassment, what behaviour is expected and how to raise concerns. Employers should develop an inclusive & supportive culture where it is clear to all employees that inappropriate behaviour will never be tolerated, and that complaints or allegations are always taken seriously and properly investigated.”
Managers also need specific guidance on how to handle complaints properly and sensitively.
With Valentine’s Day approaching, employers may want to review whether their existing policies and training are adequate to deal with workplace relationships and harassment risk.
