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Dangerous liaisons

first_imgSpring is on its way and, for some employees, love is in the air. Forothers, however, all that’s in the offing is a desire to pursue a claim of sexharassment. Heather Falconer asks whether love contracts can cushion employersfrom the rocky road of romanceIn a country where we cling, against all the evidence, to the ideal oflasting, trusting romantic relationships, the extracts on page 16 from”consensual relationship agreements” – commonly known as lovecontracts – devised by US law firm Littler Mendelson are likely to draw hootsof derisive laughter. Most Brits would regard this recent legal development, rather like thepre-nuptial agreement, as the horribly cold-blooded creation of alitigation-crazy national psyche. In the US about 1,000 such agreements arethought to exist, designed to forestall sex discrimination claims rising fromthe ashes of in-house relationships. According to Garry Mathiason, senior partner at Littler Mendelson, suchaction is recommended only in limited circumstances. “We designed thecontract in response to requests from clients asking if there was somespecialised legal mechanism which could be used to protect businesses fromunfair sexual harassment claims, especially involving a higher level executiveand an employee under his or her direction. “Unfortunately there have been many instances of office affairs comingto a natural end and the employee later deciding to pursue claims againstcompanies for their own financial gain.” The extent of US employers’ concern over sexual harassment litigation, whichis attracting ever higher damages, was illustrated recently in an episode ofthe US television drama Ally McBeal. On this side of the pond, the recent removal of the compensation cap for sexdiscrimination and a burgeoning sexual harassment case load is paving the wayfor ever increasing concern over the issue. With Valentine’s Day drawing outthe sort of ardour not seen since the Christmas party, employers may be onceagain wondering how to protect themselves from the increasingly unpredictableconsequences of love among the terminals. Eversheds is “working closely” with Littler Mendelson to monitorthe types of claims emerging in the US and to assess whether UK employersshould follow suit and introduce love contracts into their policies andprocedures. “There are parallels to be drawn between the US and the UK,” saysEversheds’ Anne-Marie Thompson. “Generally cases and claims that emerge inthe US emerge in the UK a few years later. The number of sexual harassmentclaims made in the UK has also increased dramatically and there is nothing tosay for sure that the love contract could not be used here.” Most leading UK employment lawyers, however, question its effectiveness onboth legal and cultural grounds. Legal because it is virtually impossible tocontract out of the right to go to an employment tribunal – where most sexualharassment/discrimination complaints are heard – especially in respect ofevents which have not yet happened. Cultural, because, as David Whincup of HammondSuddards puts it, “Most people would run a mile from anyone who sidled upto them at an office do and waved one of these agreements.” Also, says Thompson, “You have to question what is in it for theemployee? This kind of agreement is purely for the protection of the employer –why would any employee agree to it?” The love contract seeks to address three main issues, says Thompson. First,that the relationship is voluntary and truly consensual; second that if eitheremployee involved believes the company’s sexual harassment policy is violated,this should be reported to a company representative; and third that anyallegations of harassment are dealt with internally rather than through thecourts. From a technical point of view the third is very hard to achieve in the UK –signing away basic employment rights is effective here only in very limitedcircumstances. “A love contract would not satisfy thesecircumstances,” says Thompson. “It would need to be done in thepresence of an Acas officer or as part of a fully constituted compromiseagreement where all parties had taken independent legal advice.” Some argue that harassment claims are always going to be a fact of life insituations where powerful people work closely with the not-so-powerful – and thereprobably isn’t a workplace in the land where that juxtaposition doesn’t exist.But Thompson warns that it is essential to give thought to how delicatesituations are to be handled: the days are gone when the “juniorpartner” could be ushered out of the door without so much as a by yourleave. Says Thompson: “In the past it was often company policy that in suchsituations it was the less senior employee who had to go. But that is changing– employers realise it will no longer be justifiable and that a proper policyshould be followed.” There are two big problems for employers when it comes to sexual harassmentclaims. One is that the courts are not interested in the motive or intention ofthe “harasser”: “it was only a bit of fun” or “she wasasking for it” just won’t wash. The second is that the question of whetherthe behaviour was offensive is broadly a subjective one: it is in the eyes ofthe individual victim. There is no statutory definition of sexual harassment: claims are broughtunder the Sex Discrimination Act (SDA) 1975 as direct discrimination – where aperson is treated less favourably than others as a direct consequence ofgender. But the tribunals rely heavily on the EU Code of Practice on theDignity of Men and Women at Work, which states that sexual harassment meansunwanted conduct of a gender-specific nature. Such behaviour will beunacceptable if, inter alia, it is unwanted (that is, uninvited), unreasonableand offensive to the recipient. Clearly the subjective test for whether offence has been caused has limits.”If the victim appears to the tribunal to be excessively sensitive thenthe tribunal will try to find that offence was not in fact-caused,”Whincup points out. If there is no offence there is no less favourable treatment,and hence no unlawful discrimination.” Judging how seriously to treat a complaint, however unlikely it may sound,is a very problematic call for an employer. The case law illustrates thedifficulties in establishing whether offence was in fact caused. In Snowball vGardner Merchant, 1996, ICR 790, for example, a manager asked a woman em-ployee for sex on the table and sent her exotic underwear through the internalpost, but said she had not suffered any offence from his conduct as she wasallegedly in the habit of referring to her bed as a “playpen” andboasting of her black silk sheets. “Eventually the tribunal decided that arather racy taste in bed linen by itself did not necessarily mean that she wasa woman with no moral standards – the defence was massively unsuccessful,”Whincup says. On the other hand, the case of Stagg v the Property Services Agency,unreported, where a woman was found not to have been offended by dirty jokes onthe basis that she had been married three times and was known to swear, showsthe sometimes idiosyncratic reasoning of the tribunals. The problem, says Whincup, is that there is very rarely direct evidence asto the state of mind of the “victim” at the time the allegedharassment took place. “Unless the employee has burst into tears and runout of the room in front of witnesses, written steaming letters or gone to thedoctors on the verge of a breakdown, it is often very difficult to establishthe state of mind in a tribunal six months down the line. “That said, the tribunals will be very ready to infer offence fromgender-specific conduct unless there is clear evidence to the contrary.” Even if a claim does turn out to be unfounded or even false, a failure bythe employer to give a considered response could itself give rise to a separateclaim of sex discrimination. “The fact that a claim turns out to berubbish is not an excuse for not investigating it”, says Whincup.”There is a duty on the employer to respond.” There are only two defences for employers where an employee’s act has beenfound to be sexually discriminatory: first, that the employee was not acting”in the course of employment” (thus removing any sort of vicariousliability) and second, under section 41 (3) of the SDA 1975, that the employertook such steps as were reasonably practicable to prevent the employee doingthat act or acts of that sort in the course of his employment. The first of these is very difficult to prove, says Whincup. In practice,most conduct that takes place between colleagues risks being construed asoccurring “in the course of employment”. The successful use of thesecond defence hinges mainly on paperwork; it is about being able to prove thatsexual harassment policy not only exists but is inculcated and enforced.Disciplinary and grievance procedures, specific anti-harassment or equalopportunities policies, e-mail/Internet policies: all these are important notjust in providing the defence but in assisting in the fair dismissal of theharasser if necessary, and hopefully preventing that form of conduct in thefirst place. Employers’ duty The extent of an employer’s duty was brought home quite starkly in the caseof Bourdouane v Go Kidz Go, IDS Brief 578, where a children’s entertainer wasoffended by the lewd actions not of a fellow employee but by the parent of oneof her audience. She subsequently persuaded the employment tribunal that heremployer had not taken reasonable steps to prevent this unconnected third partycommitting the harassment. The tribunal accepted the argument that as soon asthe employer knew the harassment was happening but did not take any reasonablesteps to prevent it, it became liable. The general workplace culture now plays an important part, too: cases of”environmental sexual harassment”, such as Morse v Future Reality,IDS Brief 637, show that generally offensive gender-specific behaviour, even ifnot targeted at anyone in particular, can be discriminatory. Employers, itseems, must take visible steps to eradicate the worst excesses of”laddish” and anti-social behaviour of all kinds from the workplace. So while the idea of your treasured staff signing bits of paper beforeembarking on a fling might still seem a little far-fetched, the message isclear. Without a documented policy on harassment and clear parameters definingthe acceptable limits of staff behaviour towards each other, those cheapthrills once regarded as part of the rough and tumble of daily life couldactually cost the employer very dear indeed. Love contracts – could it come to this?”X and Y each, independently and collectively, desire toundertake and pursue a mutually consensual social and/or amorous relationship(‘Social Relationship’) with the other.””X\Y’s desire to undertake, pursue and participate in saidsocial relationship is completely and entirely welcome, voluntary andconsensual…””X\Y has entered into said Social Relationship after havingdiscussed in depth with Y\X the ramifications and implications of entering intoa Social Relationship with a co-worker of X\Y’s professional position and afterhaving had the opportunity to discuss such matters with counsel of choice orany other person of his choosing.””X and Y understand and agree that conduct or speech in theworkplace which is sexual or amorous may be objectionable or offensive toothers. Therefore X and Y agree not to engage in such conduct on companyproperty or when performing work related tasks in public areas. Such prohibitedconduct includes, but is not limited to, the following: holding hands ortouching in an affectionate or sexually suggestive manner; kissing or hugging;romantic or sexually suggestive gestures…speech…or communications, whetheroral or written; and display of sexually suggestive objects or pictures.” Related posts:No related photos. Dangerous liaisonsOn 1 Feb 2000 in Personnel Today Comments are closed. Previous Article Next Articlelast_img read more