Declaring relationships at work – it’s complicated (UK)David Whincupon October 30, 2023 at 11:47 am Employment Law Worldview


When the nightly news seems to provide nothing but death and flooding, how good of ITV to provide some light entertainment in the form of its widely-reported new requirement that its staff declare their workplace friendships, whether sexual or not.  Described sagely as “properly mad” by one employee there, the policy is apparently sparked by concerns over the Phillip Schofield affair and subsequent questions as to who knew what and when about that relationship within the operation.  The Independent Online cites the new rules as a “route to office awkwardness”, but in reality that is absolutely the least of it.  Discrimination, constructive dismissal, data privacy issues, cost, grievances, litigation and leg-crossing embarrassment all await employers paddling in this particular pond. 

First, there is the question of definition.  Any policy which is to be enforced (in the sense of some action taken against those who don’t comply, which is apparently what is threatened here) must have clear boundaries – here, as to what relationship is declarable and what is not.  Therefore you need to define “friendship”, and in particular how it differs (if it does) from a normal amicable workplace relationship.  Does going out for drinks after work make you friends?  What if there are just the two of you or would a foursome still qualify?  How regularly must it happen to reach that threshold?  Does it require dinner as well?  How much do you need to know about someone to be their “friend” for these purposes?  Going to school together?  Sharing a football team or common gym time?  What about still being a godparent from some years ago even if you can’t now tell the child from a hole in the ground?

Remember also that friendship takes two.  You may think I am your friend because I am civil and respectful to you in the workplace, but underneath I could see you as an overly-chummy pain the neck, someone whose company I can tolerate from 9-5 but would never seek out.  So you declare us to HR as “friends” and I do not.  Does that not place an obligation on the employer to investigate that inconsistency – after all, if no one is going to act on triggers of that sort, what’s the point?  Logically, if the employer does then investigate, what can it do?  Thinking that you are more popular that you are is given to many of us and, perhaps sadly, is not unlawful.  In my example above, if you somehow mistake my cool indifference for a wish to take things to the next level, I already have a full set of legal rights and internal policies under which I can complain.

Therefore there are good arguments that requiring the disclosure of mere friendships is both practically impossible and substantially pointless, since there is basically nothing useful the employer can do with that information anyway, an early fail under the data protection principle of only gathering and storing data you actually need.  However, what about those relationships which have become sexual?  Surely there is greater merit in seeking information about those in order to minimise the scope for allegations of harassment, abuse of power, favouritism, victimisation, etc?

In theory, maybe, but again this is heavily overborne by the practical difficulties involved.  You don’t have quite the same definitional problems but there are still a multitude of possible circumstances and contexts posing a wide range of risks for the business.  At one end, you might have a drunken one-night stand immediately recognised by both parties as a catastrophic error of judgement and never spoken of again.  At the other, a full-blown affair between consenting single adults, neither committing any legal or moral offence and, maybe somewhere in the middle, a sexual encounter or relationship with which one party is much less comfortable than the other.  Again, you have immediately the question of who declares and how the employer reacts if there is no common position on the relationship reported.  Declaring to your employer for its records that you have had sex with X where X would sooner forget the whole ghastly business could easily be turned into a sexual harassment claim, since it is obviously unwanted conduct based on gender which causes embarrassment, humiliation and offence, etc.  It would not be open to the employer to rely on the statutory defence of taking all reasonable steps to prevent such conduct, largely because its own policy expressly required it. 

And can you imagine conducting the grievance hearings which challenges to reported relationships could generate? Consider the ill-will, the resentment, the destruction of relationships which, though not close friendships or sexual in nature, were entirely amicable and professional and are now neither.  It is of course only a short step from there to discrimination and/or constructive dismissal claims based on the employer’s handling of those complaints.

Then there is the issue of who gets to see these reports.  Who in their right mind wants to know the covert ins-and-outs of their colleagues’ workplace relationships, let alone be compelled to act upon that knowledge?  Just about the only principle we can safely lay down here is that the sort of person who would be attracted more than appalled by that proposition is the sort of person who should never ever be given that responsibility. 

From the privacy perspective, it goes without saying that this would be data of the most sensitive nature, requiring the greatest possible precautions against loss or unauthorised disclosure.  For a hacker or alienated employee in the HR or IT teams, it represents a juicy target.  Using that information to the full (in terms of preventing bias, favouritism or victimisation) would require it to be known to all those members of the employee’s management who may oversee his/her conduct relative to other staff – evaluations, pay or promotion decisions, redundancy selection, development opportunities and so on.  Therefore if the information is to be useful (the only basis on which it could lawfully be sought), it must ultimately be known (or at least accessible) to a not-small number of people in the organisation.  If that is the case, who is going to make the appropriate declaration in the first place? Keep in mind also that the employer should not retain data which is out of date, so consider if you can what processes might be put in place to ensure that it remains current, especially bearing in mind that ceasing to be friends may not be a particular point in time but a gradual drifting apart which neither really notices.  Imagine the humiliation of finding that you have been “unfriended” by a colleague and, more particularly, that HR knew about it before you did.

ITV’s objectives in introducing this policy are laudable, but this is far too high-risk a means of achieving them. Over and above all these issues, it suffers from the still more weighty practical issue that if you are willing to lie to your employer about a suspected relationship, you will do it regardless of any policy, however earnest in its terms. If you catch your Board considering an initiative of this nature, where getting down on one knee, updating your Facebook status and telling your parents now all have to be preceded by notice to your employer, just say no.  Nothing good can come of it.

Employment Law Worldview

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