Bridge HR articles

“Unwise, but not illegal” is the phrase which, as you will no doubt have seen, Phillip Schofield used to describe his career-ending relationship with his younger colleague.

It is a phrase which describes a large number of situations in which we find ourselves advising both employers and employees on. When it comes to inter-office relationships of any kind, there are a number of factors in Phillip Schofield’s story which give rise to serious issues for the employment relationship, and explain why it resulted in the termination of his employment, albeit by his own resignation.

How does this impact you as an employer?

For This Morning a big problem was obviously the deception involved – something which will generally lead to gross misconduct and will often result in the termination of employment. Even had the relationship been otherwise unproblematic, lying to your employer is nearly always a fundamental breach.

What, however, would have happened if he and his colleague had been upfront about it from the start?

Employers are not there to make moral judgments in the normal course of events, but where a job carries with it an expectation of a certain standard of behaviour, then failing to come up to those standards can be sufficient.

In a public role like that, with a wholesome, family-orientated image, it could have been sufficient on its own to terminate the relationship. It certainly did not meet the public image which was portrayed, and thus, it is likely this could have resulted in the termination of the relationship, depending on the public mood and how things were portrayed.

In more day-to-day jobs, there are jobs where actions which are “unwise but not illegal” can be career-ending. Teaching, for example, may be one profession where conduct which brings the profession into disrepute can result in the loss of both a job and career.

It is likely a married teacher in their 50s having an affair with a young person in their late teens would result in termination of their employment if it resulted in adverse publicity in the local area.

Had that young person been a former pupil at the school, then it is highly likely that professional disciplinary action would have been taken.

Law would be another profession where bringing the profession into disrepute can result in the loss of career. Where the actions directly affect the employer and/or the job in some way, then they may be enough to justify disciplinary proceedings – although the employer would very often have needed to have made that clear in the contract or supporting documents.

What about “an abuse of power”?

Mr Schofield himself stated in an interview that it “didn’t feel like that”. Unfortunately, especially for the person with the power, that is often the case.

We are sometimes consulted by senior-level employees who have been accused of relationships which amount to this, and they are genuinely upset and confused to have been so accused.

The power imbalance is often not considered to be a factor in the relationship, and certainly, the senior-level employee generally believes that the colleague has freely consented to a date or relationship or whatever is in question out of mutual attraction. The reality may be different.

There may be mutual attraction, but the underlying power imbalance cannot simply be ignored – how freely has the decision been made, when the person asking has, say, the power of dismissal over the person being asked?

Something to consider is often what will happen should the relationship end. Especially, what would happen should the junior party end the relationship on bad terms.

Senior Managers need to be trained and educated on appropriate behaviour in the workplace. It is generally wise to prohibit any relationship within reporting lines and to require that any relationships are reported to HR.

Reporting must be the obligation of the senior person, and it must be that person who bears the disciplinary sanction for failing to do so – to punish the person without the power is simply adding to the pressure on them.

Clear guidelines about appropriate behaviour in work is also wise, and it is vital not to forget the office social events.

A salutary lesson on how badly wrong things can go

For an example of how badly wrong this can go, the recent case of P v Crest Nicholson Operations Ltd, is a salutary lesson. The case involved the actions of a Site Manager, employed at the time by Crest.

During a work social event – at which a free bar was available from 1pm through to late in the evening – P had attended the event, and had been raped by the Site Manager after the event in the hotel room which she was staying in.

The Employment Appeal Tribunal held that the employer was responsible for harassment under the Equality Act 2010, and that the employer was liable for the rape which had occurred and which was held to have been done during the course of his employment.

There were a number of factors which caused the Tribunal to consider the act to be in the course of employment:

• The event had taken place during working hours, and there was a general expectation that people attend it;
• Employees could claim a portion of their expenses in attending the event, including taxis and hotel rooms;
• The Site Manager had openly harassed another employee during the course of the event, and had been warned to stop by management, yet no other steps had been taken to immediately discipline him, remove him from the party, or to monitor his behaviour towards other staff;
• The Site Manager had been seen leaving the event with P, and it had been noted that she was very drunk. It had even been assumed that they were probably going to sleep together, and casually noted that “these things happen at work events”. No steps had been taken to protect her or to consider whether she was safe and the company was found to have failed to put reasonable safeguards in place to protect staff;
• The other colleague who had been harassed had put in a complaint, and the subsequent investigation into this harassment was done inadequately;
• P’s willingness to trust the Site Manager to escort her to her hotel room was due to his being a senior manager within her firm, and thus being known to her and in a position of some trust;
• Although the Site Manager was sacked as a result of the other colleague’s complaint, which was upheld, the investigation into the complaint was not done well, and was heavily criticised, in particular for failing to establish a clear chronology of events and for interviewing only 3 witnesses, and failing to explore and clarify a number of matters in those few interviews they did carry out. 2 people in particular were referred to by those witnesses as having witnessed events and neither of them had been spoken to. Given how very serious the matter was, and that the company was aware of the allegation of rape - albeit that it was able to dismiss on the harassment allegations made which were not the subject of a police investigation – this was felt to be a dereliction of the employer’s duty.
  
  

What should you avoid doing as employers to protect yourselves?

This case should give employers clear guidance on the expectations on them at work social events, and the need to manage these events carefully. Matters to consider would be:

1. Avoid too much alcohol at work social events. If alcohol is to be provided, guidance should be given on what levels of intoxication is appropriate and the standards of behaviour which still apply; and it would be wise to consider carefully any thought of a “free bar” especially over a long period;
2. Don’t leave staff to work out how to act at social events. All staff should be issued with clear guidance about appropriate behaviour during the event;
3. Don’t allow senior staff to behave in the same way as more junior staff. Remember that power imbalance will be there at social as well as work events. Senior staff should be given clear guidelines of the standards of behaviour acceptable, and generally these would be higher than for more junior staff, especially with regard to intoxication;
4. Do not allow anyone to bully, harass or discriminate. Set out clearly again a reminder of company standards, and monitor this during the event;
5. Don’t rely on staff to self-monitor. Some senior members of staff should be in attendance, not drinking, and should be monitoring behaviour. Where necessary disciplinary action should be taken, including excluding any member of staff behaving badly;
6. Don’t forget the journey home in your planning. Employers should remember their responsibility does not end at the end of the event, but would cover safe transport to home/accommodation and ensuring that all staff are in a fit state to get safely home, and if not to ensure that they do so.
7. Don’t blur the boundaries between the work social and any “after social social” which may happen. It is wise to make it clear that any continuation of the evening at another establishment is nothing to do with the employer, and thus does break the duty of care, although it would still be part of the duty to ensure that staff are in a fit state when they leave the work “do”.
8. Don’t forget your vulnerable staff. Any particularly vulnerable staff members should be given more care – which may involve paying for taxis and/or asking for confirmation that they are safely home. This can include staff with mental health issues or neurodiversity.