Love Contracts at Work

The arrival of The Worker Protection (Amendment of Equality Act 2010) Act means that the legal implications of workplace relationships will once again be an important HR discussion point, particularly when it comes to the balance between employee rights to a private life and employer duties to prevent sexual harassment at work.

According to statistics from Forbes, more than half of employees have engaged in an office romance and almost half of employees surveyed do not know their company’s policy regarding office romances. The recent Financial Conduct Authority (FCA) report into non-financial misconduct found that 49% of reported incidents across their sample of financial services firms involved harassment and discrimination. It is critical that employers have guidance for employees on how to conduct personal relationships whilst at work so that the new legal obligations are met.

The legislation requires employers of all sizes to fundamentally enhance their approach to preventing sexual harassment at work. The Equality and Human Rights Commission (EHRC) has published technical guidance on the positive legal duty to take reasonable steps to prevent sexual harassment (the preventative duty).

https://www.equalityhumanrights.com/guidance/sexual-harassment-and-harassment-work-technical-guidance

The duty requires that employers should anticipate scenarios when workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment. Given the statistics, then it is obvious that employers need to pay attention to personal relationships at work to meet their new preventative duties concerning sexual harassment.

It can clearly be difficult for employers to have insight into when a more personal relationship between colleagues starts, develops or ends. Indeed, the subtleties of office relationships and the “unwritten rules” are constantly evolving and so employers need to be sensitive and measured in their approach to matters that may be deemed very private by staff.

The legal point here is that paragraph 1.22 of the EHRC Code recognises this potential shift in relationships and that conduct may become unwanted and generate sexual harassment risks at work. Evidently there is the potential for relationships between colleagues to start in a consensual and wanted fashion and for them to develop into an unwanted harassment case over time. Even if such risks do not eventuate then it will now be good practice for employers to focus more attention on personal relationships at work.

What are Reasonable Steps to take to Meet the Preventative Duty

It is very clear and specifically set out at paragraph 3.31 of the EHRC code that an employer is unlikely to be able to comply with the preventative duty to reduce sexual harassment unless they carry out a risk assessment.

It appears obvious that sexual harassment risk assessments should analyse the extent to which there are existing romantic relationships in the workplace and to consider the extent of controls or proportionate checks that may be put in place.

Employers will be very familiar with risk assessments having done so for health and safety reasons during COVID. It is very clear that the first precautionary and preventative step will be for employers to produce a risk assessment on sexual harassment. Such template might consider the following:

• The risk of sexual harassment occurring in the course of employment.
• Steps it could take to reduce those risks and prevent sexual harassment of workers.
• Which of those steps are reasonable; and
• Implement those reasonable steps

If an employer has been on the receiving end of sexual harassment complaints, whether informally or formally, then there will be a greater expectation that they will take steps to prevent this happening again and so such organisations may be more severely tested.

Are we really going to talk about Love Contracts at Work?

If an organisational risk assessment identifies relationships at work as a risk area then the employer will be expected to establish an action plan to mitigate against the risk of sexual harassment.

The requirement for preventative action now means there will be greater scope for employers to establish “love contracts” with employees or stronger relationship at work policies requiring specific disclosure of relationships in defined situations such as where there are direct reports.

Many employers frown upon the idea of relationship disclosure contracts and indeed may perceive it as being a US type influence on UK law. Nonetheless, given the preventative duties and obligation on employers to horizon scan and identify risk areas then employers should consider the appropriateness of tightening controls on workplace relationships.

What Are Love Contracts?

A "love contract" is a formal, written agreement that employees may be asked to sign by an employer if they enter a romantic or sexual relationship with a colleague at work. These contracts are designed to protect both the employer and employees by setting clear expectations around the relationship and outlining guidelines to prevent conflicts of interest, accusations of sexual harassment, and other potential issues that could arise from the relationship.

In practice, a love contract may include provisions such as:

• Consent and Transparency: Both parties confirm that the relationship is consensual and that they have disclosed the relationship to the nominated employer representative, as identified in guidance.
• No Impact on Professional Responsibilities: The contract can specify that the relationship will not affect work duties, promotions, or the reporting structure (especially if one of the individuals is in a position of authority over the other). How easy that is to monitor and enforce in practice is highly questionable.
• Sexual Harassment Prevention: The contract may reinforce that both parties in the relationship are expected to maintain professionalism and avoid any behaviour that could be construed as harassment. Parties will be reminded of existing policies on discrimination and harassment so that risks are mitigated.

Realistically, we do not envisage many UK employers immediately rushing to implement these contracts, as there is no mandatory legal requirement for them. Our current expectation in the UK is that both employers and employees will not be culturally aligned to interfering in personal relationships to the extent of employers demanding express love contracts. Instead, we believe that “relationship at work” policies are more likely to be bolstered and employers will now be more proactive in risk assessing workplace relationship dynamics to meet the preventative obligation. These policies can still provide strong protections for employers but do take time to tailor for organisational and cultural fit.

Are Relationship at Work Policies Effective?

Whilst these policies may provide a useful framework for preventing sexual harassment and ensuring transparency, their effectiveness depends largely on how they are implemented. For instance:

• Employee Autonomy: Some employees may feel uncomfortable or pressured to disclose personal relationship status, fearing negative consequences if they refuse. This highlights the importance of ensuring that employees are fully aware of their rights and are advised that these policies exist to reduce sexual harassment and are hopefully only relied upon in rare circumstances.
• Cultural Sensitivity: The mere existence of a policy may not be enough to create a safe workplace environment if the underlying company culture does not promote inclusivity and respect for personal boundaries. Employers need to accompany these policies with clear anti-harassment policies, regular training, and mechanisms for employees to report grievances. Our recommendation is that a key member of staff is nominated as the responsible person to manage the sexual harassment policy and that this area is carved out of more general equal opportunities polices.
• Evolving Legal Standards: As employment law continues to evolve, employers must stay informed about changes in legislation (like the Worker Protection Act) and adjust their policies and contracts accordingly to ensure compliance and avoid legal liabilities.

Employer Penalties

Perhaps employers may be more incentivised to consider proactive preventative action to reduce sexual harassment when they understand the enforcement measures that they may face:

• EHRC has the power to take enforcement action against an employer for breach of the duty.
• EHRC may enter into a formal legally binding agreement with an employer to prevent future unlawful acts.
• EHRC may petition a court to provide an injunction to restrain an employer from committing an unlawful act; and
• If an individual succeeds in a claim for sexual harassment and is awarded compensation, then an employment tribunal must consider whether the employer has complied with the preventative duty. If it considers the preventative duty has been breached an employment tribunal can increase compensation by up to 25 percent.

It is worth noting that a worker cannot claim before an employment tribunal for a breach of the preventative duty alone. However, they may still report an employer to EHRC.

Conclusion

Employers must focus on risk assessing their workplaces as a starting point to meeting this new and demanding preventative duty under the Worker Protection Act. That risk assessment should look at relationships at work and consider existing policies and whether they need to be strengthened to help mitigate against the risks of sexual harassment at work. An action plan should then be kept under continuous review to implement specific measures to reduce harms to staff.