Work is still one of the most common places for people to find life partners. However, the #MeToo campaign has left many employers feeling vulnerable. Should employers deal with relationships at work?
Relationships can go wrong or be unwanted and employers have a legal duty to protect their employees at work and create a safe working environment. This includes protecting employees from unwanted attention or the fallout of a relationship ending. Not only is there a duty to protect the workforce, but the employer has a duty to protect itself (and potentially its shareholders and other stakeholders). Many employers are regulated and serious harassment may need to be disclosed to the Regulator (for example the UK's Financial Conduct Authority) for the conduct to be investigated as it may well go to the fit and proper or integrity tests for regulated employees.
Failing to deal with sexual harassment impacts directly on recruitment, retention, the share price and also has serious legal and regulatory consequences.
The most obvious step for employers is to set the culture. There has to be robust policies which 'live' in the culture of an organisation. This requires top to bottom training on harassment and discrimination generally. Employers should deal publicly (within the confines of their obligations of confidentiality to employees) and robustly with transgressors. In this climate it is only in very limited circumstances that employers should be advised to settle with (and gag) individuals who have been found to have harassed co-workers. Some employers have considered requiring employees in consensual relationships to sign a relationship disclosure agreement. Outside the financial sector (where there can be confidentiality obligations within teams) these agreements are not common place and they have their limitations. It is not the disclosed relationships which are often the problem. Alternatively, employers could consider taking out appropriate insurance to cover employees in the event of a claim. For example, last year businesses in the United States spent approximately US$2.2 billion on insurance policies related to sexual harassment and other workplace discrimination claims. This number is expected to grow to at least US$2.7 billion by 2019. Clearly employers will need to vet the terms and exclusions very carefully to ensure that employer liability policies and D&O policies cover potential sexual misconduct.