Culture, conduct and compliance: Anti-sexual harassment obligations and relationships at work

Mark McWilliams: Well, good morning. Thank you for joining us for this,

Mark McWilliams: Fourth installment of our Employment Breakfast Briefing Seminar Series.

Mark McWilliams: I’m Mark McWilliams, a senior associate in Kingsley Natalie’s employment team. My colleague, Bina Patel, who is a legal director in our employment team, was to cover the employment aspects of this session with me, but unfortunately she’s not able to join us this morning, so I’m afraid you are stuck with me for the employment elements.

Mark McWilliams: But, you… I am joined by, my colleague Melanie Hart, who is a partner in our dispute resolution team, specializing in reputation management.

Mark McWilliams: And,

Mark McWilliams: My colleague Sophie Tang, a senior associate in our criminal litigation team, so you won’t have to listen to me.

Mark McWilliams: For the whole lower.

Mark McWilliams: The pace of change in the world of employment law is a bit dizzying at the moment.

Mark McWilliams: We’re going to focus on one area where there’s considerable change, and that’s in the area of sexual harassment in the workplace, particularly in the context of workplace culture.

Mark McWilliams: Employer duties and romantic relationships at work.

Mark McWilliams: The fact we have colleagues from three different practice areas on this panel reflects something we think is genuinely important.

Mark McWilliams: The issues we’re going to discuss today don’t sit neatly in one legal box. They require joined-up thinking.

Mark McWilliams: And that’s exactly what we hope to offer you this morning. Next slide, please.

Mark McWilliams: Today’s session will be split into two panel discussions. The first is harassment at work, where are we now? We’ll briefly recap the legal framework, we’ll outline what changed on the 30th of October this year.

Mark McWilliams: And we’ll discuss reputation management and criminal law implications, and points to consider in the context of allegations of workplace harassment.

Mark McWilliams: In the second part, Cupid in the office, managing romance and Risk in the workplace, will focus on romantic relationships at work, looking at the legal framework, and what good practice looks like on this matter from an employment, reputation management, and criminal law perspective.

Mark McWilliams: We’ll be happy to take questions at the end of the webinar.

Mark McWilliams: Next slide, please.

Mark McWilliams: So, I’ll start us off. Harassment at work and looking at the legal landscape.

Mark McWilliams: We’ll start by looking at where the law stood before 30th of October, when the changes we’re going to discuss came in.

Mark McWilliams: Next slide, please.

Mark McWilliams: Sexual harassment in the workplace is prohibited under the Equality Act 2010.

Mark McWilliams: Under that Act, harassment is defined as unwanted conduct related to a protected characteristic.

Mark McWilliams: In the case of sexual harassment, that means unwanted conduct of a sexual nature, which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating, or offensive environment for them.

Mark McWilliams: The conduct doesn’t have to be intended to be harassing.

Mark McWilliams: The question is about what the effect of the conduct is on the recipient, and that is assessed against what is reasonable in the circumstances.

Mark McWilliams: For many years, the primary obligation on employers was essentially reactive. If an employee was harassed, the employer could be vicariously liable for the acts of its employees.

Melanie Hart: Mark, I don’t know about everybody else. Sophie, can you hear Mark?

Sophie Tang: No, I can’t.

Melanie Hart: No, Mark, your sound’s gone off,

Mark McWilliams: It was on responding to complaints rather than preventing them in the first place.

Mark McWilliams: I’m getting some indication that my, son…

Mark McWilliams: I’m like, can I be heard?

Melanie Hart: It’s back in now, yes, thanks, Mark.

Sophie Tang: I think it’s cutting in and out a bit, Mark.

Mark McWilliams: Alright, it seems like my headset restarted for some reason there, so let’s hope that that’s the end of that.

Mark McWilliams: Okay, thank you. Please do shout at me if that happens again.

Mark McWilliams: Okay, so, what I was saying, is that, I’ll repeat the, the, the…

Mark McWilliams: the point I was making when that happened. For many years, the primary obligation on employers was essentially reactive. If an employee was harassed, the employer could be vicariously liable for the acts of its employees.

Mark McWilliams: Unless it could show that it had taken all reasonable steps to prevent the harassment occurring.

Mark McWilliams: That was, and it still is, a high hurdle to overcome, but the focus was on responding to complaints rather than preventing them in the first place.

Mark McWilliams: That changed in October 2024, when the Equality Act was amended to include a new, positive, proactive duty on employers to take reasonable steps to prevent harassment of their employees in the course of their employment. It’s often referred to as the preventative duty.

Mark McWilliams: This was a significant shift.

Mark McWilliams: For the first time, employers couldn’t simply wait for a complaint to land on their desks.

Mark McWilliams: There was a legal obligation requiring them to be more… to be working actively to prevent harassment before it occurred.

Mark McWilliams: If an employer breaches that preventative duty, the one in place since October 2024, the Equality and Human Rights Commission has direct enforcement powers, including to investigate an employer, to issue an unlawful act notice where an employer is found to have breached the Equality Act.

Mark McWilliams: To require the employer to prepare an action plan, setting out how it will remedy any continuing breach and prevent future breaches.

Mark McWilliams: And to enter into a binding agreement with an employer to prevent future unlawful acts. And employers like Lido and Sainsbury’s have had to do this after sexual harassment cases against them.

Mark McWilliams: They can also seek a court injunction to restrain an employer from committing an unlawful act.

Mark McWilliams: Breach of the preventative duty can’t be brought as a standalone claim. If an employee succeeds, though, in bringing,

Mark McWilliams: Another claim involving… well, a claim involving sexual harassment, to any extent, the employer… the employment tribunal can increase compensation awarded to the employee by up to 25% if it finds that the employer has failed to comply with the preventative duty.

Mark McWilliams: Next slide, please.

Mark McWilliams: So what changed on 30th of October 2026 under the Employment Rights Act?

Mark McWilliams: There are two significant developments to highlight.

Mark McWilliams: First, the preventative duty has been strengthened.

Mark McWilliams: An employer must now take all reasonable steps to prevent sexual harassment, instead of just reasonable steps.

Mark McWilliams: That’s not a trivial change.

Mark McWilliams: It will no longer be enough for an employer to have taken some of the reasonable steps available to it, like…

Mark McWilliams: Having a policy and running occasional training.

Mark McWilliams: Under the new standard, employers will be required to take all reasonable steps, and documentation of those steps is going to be vital.

Mark McWilliams: What does all reasonable steps look like in practice? Well, unhelpfully, the law does not

Mark McWilliams: List specific steps an employer must take.

Mark McWilliams: And different employers may prevent sexual harassment in different ways.

Mark McWilliams: But all employers must take action, and no employer is exempt from the preventative duty.

Mark McWilliams: Whether an employer has taken reasonable steps, or all reasonable steps, is an objective test, so it will depend on the facts and circumstances of each situation.

Mark McWilliams: Circumstances like the employer’s size, the sector it operates in.

Mark McWilliams: the working environment and its resources. So, unfortunately, again, there is no one-size-fits-all answer.

Mark McWilliams: Regulations setting out a non-exhaustive prescribed list of obligations that are to be regarded as reasonable in the context of the preventative duty.

Mark McWilliams: Aren’t expected until next year, or even the year after.

Mark McWilliams: Following consultation.

Mark McWilliams: We expect those, non-exhaustive… the items on that non-exhaustive list to include things like carrying out risk assessments.

Mark McWilliams: publishing plans or policies, and steps, relating to the reporting and handling of complaints. But we will only know for sure when the,

Mark McWilliams: The list is published.

Mark McWilliams: In the meantime, employers can refer to the Equality and Human Rights Commission’s published guidance.

Mark McWilliams: That is, the employer 8-Step Guide to Preventing Sexual Harassment at Work.

Mark McWilliams: And, The… a separate set of guidance, technical guidance, on sexual harassment and harassment at work.

Mark McWilliams: ACAS has also published updated guidance on harassment, sexual harassment, and harassment in work in the light of these changes from October 30th this year.

Mark McWilliams: The bottom line is this. If a sexual harassment claim succeeds, and a tribunal finds that the now-strengthened preventative duty has been breached, the employer faces not only the reputational damage of that finding.

Mark McWilliams: but also potential enforcement action by the Equality and Human Rights Commission, and a compensation uplift up to 25%.

Mark McWilliams: The stakes are high, and the strength in preventative duty is going to make compliance more onerous.

Mark McWilliams: The second major change, is the introduction of employer liability for third-party harassment.

Mark McWilliams: This is a genuinely new obligation. It means that employers must not permit a third party, like a client, or a supplier, or a contractor.

Mark McWilliams: Or another business contact, to harass their employees, and they must take all reasonable steps, again, to prevent this.

Mark McWilliams: A few important points about the scope of this.

Mark McWilliams: Unlike the strengthened preventative duty, which is specific to sexual harassment, third-party harassment provisions are broader in scope.

Mark McWilliams: They cover harassment linked to all.

Mark McWilliams: protected characteristics under the Equality Act. So this could include harassment related to race.

Mark McWilliams: Religion or belief, sexual orientation, disability, age, And gender reassignment.

Mark McWilliams: An employer can be liable even if the harassment occurs in a single incident.

Mark McWilliams: There’s no requirement for a pattern of behaviour.

Mark McWilliams: Employees may bring a standalone claim against their employer for third-party harassment. That is, a claim that the employer failed to take all reasonable steps to prevent the duty… to prevent the third party from harassing them in the course of their employment.

Mark McWilliams: Whereas the standalone claims aren’t available under the preventative duty.

Mark McWilliams: The employer’s defense is to demonstrate that it took all reasonable steps to prevent the harassment.

Mark McWilliams: This is particularly challenging in sectors where staff, regularly interact with third parties, like retail and hospitality.

Mark McWilliams: Because employers have far less control over the behaviour of their clients and customers than they do over their own staff.

Mark McWilliams: The government has indicated that the standard expected of employers in preventing third-party harassment will be lower than that which applies to preventing harassment by their own employees, but again, what that looks like remains to be seen in practice.

Mark McWilliams: ACAS’s updated guidance on harassment at work includes suggested steps employers can take to prevent harassment of their staff by third parties, and it’s worth reviewing.

Mark McWilliams: So, to summarize, employers are now operating under a significantly higher compliance bar. The question is no longer just, do we have a policy, or have we provided training, which might have been enough to satisfy the old requirements.

Mark McWilliams: It’s not, have we done everything reasonable to prevent harassment or sexual harassment, including from people outside our own organization?

Mark McWilliams: And when things do go wrong for the employer.

Mark McWilliams: How the employer responds matters, both legally and reputationally.

Mark McWilliams: Next slide, please.

Mark McWilliams: That brings me to Melanie and Sophie, who are going to bring their perspectives on exactly that.

Mark McWilliams: So, Melanie, I’m gonna ask you a couple of questions, if I may.

Mark McWilliams: Firstly, when an employer receives a sexual harassment complaint regarding a colleague or a third party.

Mark McWilliams: What are the key reputational risks they need to be thinking about from the outset? And how early should reputation management be on their radar?

Melanie Hart: Thanks, Mark. Morning, morning, everybody.

Melanie Hart: key, really, to the reputation management considerations in all of these sorts of scenarios is to really think about that reputation management piece early on, so, sort of from the first day, really, rather than as an afterthought, and that’s where we often see it go wrong.

Melanie Hart: There’s some sort of obvious key risks in terms of

Melanie Hart: leaks from within the organization, either, you know, on social media, LinkedIn, or indeed to the press, as we’ve seen with some of the larger organisations where this has happened.

Melanie Hart: But equally, internally, the impact that it can have on morale and damage of trust, you know, ability to recruit, etc, as well as, of course, scrutiny from regulators, if you’re a regulated business, and of course, the HRC, who can take a regulatory interest.

Melanie Hart: In, in, in any, circumstances.

Melanie Hart: Market-sensitive, implications for… for publicly listed, companies. There’s a, there’s a number of,

Melanie Hart: stakeholders, if you like, where really the reputational damage can ripple out quite, quite quickly. And what we often find is, and, you know, we can think of examples of this, from, you know, our, our own

Melanie Hart: Experience and the general press, is that often it is as much, if not sometimes more, the way in which a particular complaint or set of complaints is dealt with.

Melanie Hart: rather than necessarily just the underlying conduct. And that, can often be the greatest, reputational harm, is if there isn’t a public perception that having uncovered or discovered,

Melanie Hart: Wrongdoing, that the organization doesn’t then deal with it appropriately.

Melanie Hart: as I say, I think the early involvement, of, you know, legal teams, communications, PR teams, whatever that looks like in your organization, to think about what both the internal messaging and external messaging should be.

Melanie Hart: It’s obvious to say, but that should be pretty consistent. It doesn’t mean that you have to say externally everything that you say internally, but certainly where things have gone wrong in the past is where there’s been inconsistent messaging internally and externally. And the other…

Melanie Hart: factor that is always worth bearing in mind when you’re, thinking about those, reputational communications is to make sure that you’re not, by any of those comms, inadvertently prejudicing, any investigation, internal investigation, or indeed.

Melanie Hart: Proceedings, you know, whether they would be civil proceedings or potentially even criminal proceedings, that you’re not going to inadvertently prejudice what’s going on by making a statement either too soon or giving too much detail.

Melanie Hart: Often, particularly early on in a process,

Melanie Hart: We can all think of those, announcements that simply say, you know, something’s happening, but it would be inappropriate for us to comment.

Melanie Hart: That sometimes is the only thing you can say, is sometimes the right thing to say, if it’s very early on, and you are worried about prejudicing an investigation.

Melanie Hart: you can often go a little further than that, and my sort of top tip is always to keep that under review. What can often happen is an initial

Melanie Hart: statement is put together, and then that’s it, that’s all you ever hear, and it’s never updated. And as I say, that goes for internal as well as external communications. And I think the other thing to think about in all of this is…

Melanie Hart: the confidentiality, of any particular process. See, when these sorts of allegations are being, investigated, it is important to be

Melanie Hart: frank with people about what confidentiality can and cannot be achieved. Of course, the aim would always be that anything is investigated as confidentially as possible to give everybody who’s involved in that investigation the confidence that it will be dealt with properly.

Melanie Hart: But that said, you know, you can’t promise complete confidentiality to anybody involved in the process, precisely because you may have to involve regulators, you may have to involve the police.

Melanie Hart: People may end up giving evidence.

Melanie Hart: And it’s important to be… to be upfront about that. Equally, if you are going to have to make statements, either because reputationally, you want to, or because you need to for market reasons, or whatever it might be, then that needs to be factored into what you can and can’t say about confidentiality at the beginning.

Mark McWilliams: Thank you, that’s excellent.

Mark McWilliams: that are…

Mark McWilliams: There’s sometimes a perception that reputation management in these contexts means damage limitation or keeping things quiet. Can you talk us through what a responsible, ethical reputation management looks like, and why transparency and sensitivity are so important?

Melanie Hart: Yeah, absolutely. I mean, reputation management should never be about, sort of.

Melanie Hart: cover-up or suppression of information. And it’s about ultimately handling that whole situation with

Melanie Hart: You know, integrity in mind, and the…

Melanie Hart: Organizations that have been through this, that have had a good outcome at the end of what is

Melanie Hart: of course, a difficult set of circumstances, are often the ones that have approached it in that way, so they’re not trying to sweep things under the carpet. Equally, there is a balancing act, and particularly early on in an investigation, while you’re establishing the fact

Melanie Hart: we, many on the call may, may recall, I think it was last year, a, an employer, actually a, a law firm, that had, dismissed, one of their staff members, and then faced an, an,

Melanie Hart: unfair dismissal claim. They’d…

Melanie Hart: dismissed on the grounds of gross misconduct because of an allegation of sexual harassment. But in fact, during the course of the investigation.

Melanie Hart: CCTV of the incident. It had happened at a workplace event, at an external organization, and the CCTV actually showed that the incident had been entirely consensual, and, had been actually initiated by the person who was, who was complaining.

Melanie Hart: And, showed that, essentially.

Melanie Hart: the incident, as had been described, simply hadn’t taken place, and it was very obvious from the CCTV.

Melanie Hart: What appeared to have happened was that there was no adjust… there was an initial, approach.

Melanie Hart: that centered on, well, what the accusations being made must be true, and the criticism that came from the employment tribunal

Melanie Hart: Was not that they approached it accepting and wanting to investigate what the victim had told them, because of course that is right, but that as

Melanie Hart: evidence emerged, including, you know, evidence from witnesses, and then the later CCTV evidence, that there was no adjustment to the way that the employer dealt with it, and that by that point, they had, as it were, jumped to conclusions and dismissed, and they really, you know, then struggled to recover from that.

Melanie Hart: there is a real tension between, particularly when we’re dealing with allegations of sexual harassment, you know, in particular, but it applies to everything. There is a difference between

Melanie Hart: Leading an investigation on… on an assumption that the person is being listened to and is being believed.

Melanie Hart: So you can still believe somebody’s allegation and say that you’re investigating it on the basis that you understand and believe what they say, but without

Melanie Hart: Causing a prejudice to the investigation, and ultimately, you do need to investigate, and you do need to carry out a reasonable investigation, and if you are going to take a step.

Melanie Hart: such as dismissal, that has to be on… on… on reasonable… on reasonable grounds following a reasonable investigation. And as ever, of course, important that you… that you document everything.

Melanie Hart: that’s where, I think, from a reputation management point of view, it’s important to have people involved from the beginning, so that as the investigation unfolds.

Melanie Hart: If there are any,

Melanie Hart: lines internally or externally that have been taken, that need adjustment, that whoever is leading on that, legal teams, PR, comms teams, whatever that looks like, that they can adjust with that, rather than what you can sometimes have, which is that the

Melanie Hart: PR comms team have been told, like, this is the corporate line, you know, you need to go out and make sure that that’s heard, and they’re not involved in what’s actually going on underneath, and they’re therefore able to respond.

Melanie Hart: In terms of transparency, you know, that doesn’t mean telling the public at large, you know, everything that you’re doing, and as I said, sometimes it is appropriate, more appropriate, particularly early on.

Melanie Hart: to put that line out that says, you know, we’re investigating, or whatever that might be, and it wouldn’t be appropriate for us to comment further at the moment, but that we will do so in the future, and then to make sure that you come back to it.

Melanie Hart: I think, the sorts of organisations that, as I say, have emerged well from these sorts of scenarios, it’s always a negative scenario, but they have ultimately emerged well from them, are the ones that can

Melanie Hart: Demonstrate that they have… the values that most organizations will, you know, publicly state that they have.

Melanie Hart: That they’re actually working in practice, and it’s usually where you manage to get alignment on both of those things, that actually the organization can emerge well from this sort of incident.

Mark McWilliams: Sorry, smelling.

Mark McWilliams: Well, there have been some high-profile cases in recent years where organisations have faced quite a bit of criticism, not just for the harassment, but

Mark McWilliams: how they handled it. What are the most common mistakes you see organizations making?

Melanie Hart: Yes, I mean, there have been, as she said, a number of high-profile ones, and of course, we generally only get to hear about the high-profile ones, where it’s a, you know, a larger organization that people have heard of.

Melanie Hart: I think, you know, one thing certainly where it can go very wrong, and I have in mind particularly here the…

Melanie Hart: the McDonald’s, incident that some people will remember from,

Melanie Hart: it started back in 2023, but then actually came back to the fore last year. And the difficulty that you had there.

Melanie Hart: on the reputational side was that there was an initial set of allegations, I think it was in 2003, that essentially there was sexual harassment taking place in many of the branches. Obviously, you have the challenge with McDonald’s, that a certain percentage, about 50% of their business is run on a franchise model.

Melanie Hart: Where, you know, in that sense, controlling what your franchisees do is even more challenging than it might be in a traditional employer-employee scenario. But there were wide-ranging allegations of sexual harassment in all sorts of branches.

Melanie Hart: And, you know, McDonald’s corporate, as it were.

Melanie Hart: you know, did… did come in and do an investigation. They essentially, put in… did some relatively good comms, and then put in place a sort of audit process, so again, bearing in mind the franchise model.

Melanie Hart: The difficulty you had was that you… you had, at that time, the, UK CEO, saying publicly, including to, you know, parliamentary select committees.

Melanie Hart: That they were taking it very seriously, that they were taking serious action. They’d instituted this, sort of audit process, so they were going to go around to their various branches and audit what had happened.

Melanie Hart: But what you then later got was a fresh set of allegations.

Melanie Hart: Firstly, that a lot of those audits had essentially been stage managed, so that, you know, the local kind of management teams had tried to stage management… manage and, you know, not put people in front of the audit teams who might have something to say. But then, unfortunately, a fresh set of sexual harassment allegations that came out after senior management had said that they were doing something about it.

Melanie Hart: from, obviously, from a reputational point of view, that is, you know, particularly, particularly difficult, to deal with. And, you know, there are other examples of where that, that has happened. And I think the main thing, is in terms of,

Melanie Hart: Whoa.

Melanie Hart: The response, what a good response, you know, can look like.

Melanie Hart: I’d say…

Melanie Hart: Initially, the speed of your response can be very important. We’ve also seen some examples where the delay in responding at all, and in making any kind of statement, as I say, whether it’s internally or externally.

Melanie Hart: Can also be perceived as indifference, or even, you know, a sort of an attempt to cover up and protect whoever the alleged perpetrator is in everything.

Melanie Hart: And it is a very, very fine balancing act, because as I say, you also can’t jump to conclusions. You do… yes, you have to consider the rights of the person making the allegation. You also have to consider the rights of the person about whom the allegation is being made.

Melanie Hart: witnesses, etc. But it is really that staged approach, so don’t move too slowly. Say something. You should always say something, but equally, don’t, don’t jump to, to conclusions. I think in terms of communications.

Melanie Hart: You know, we’ve all seen those sort of very legalistic, Cold, kind of,

Melanie Hart: announcements, that just feel like, you know, somebody in comms, or HR has

Melanie Hart: picked from a dedicated, you know, batch of sentences and put a press release out that way. I do think you can still be human in what you say, even within the, you know, the legal framework.

Melanie Hart: At the other end, in terms of once an investigation has concluded and whatever steps have been taken, you know, the other area where we see this go wrong, is, in terms of settlements, the inappropriate use of

Melanie Hart: NDAs, which obviously is a topic for a whole other day, and that most people on the call will be aware of.

Melanie Hart: But it’s where, you know, you can have something that’s been a relatively well-run investigation, with potentially quite good reputation management comms, but then if it all goes wrong at the end, you can undo a lot of the reputational work that you’ve done.

Mark McWilliams: Thank you, Melanie. With the new third-party harassment provisions now in force, employers might find them having… themselves having to manage a situation where a valued client has behaved inappropriately towards a member of staff.

Mark McWilliams: How do you advise clients to navigate that tension between protecting their employee and managing the client relationship?

Melanie Hart: Yeah, this is a really, really difficult area. I mean, it always has been, but particularly now that there is this, you know, positive obligation, and as you covered, Mark, you know, claims that can directly follow from that obligation not being met.

Melanie Hart: again, you know, some of the same advice applies in terms of making sure that that is properly investigated. I think one has to bring a sharpness to that investigation even more, in terms of

Melanie Hart: You know, how it’s investigated, who the investigator is, if you need to bring in somebody external, because the pressures that exist in any, investigation like that, where, you know, often, not always, but often you will have…

Melanie Hart: somebody in a more senior position, sometimes it’s somebody in a more junior position. That’s even more heightened when, in fact, that’s a client, and it may be a big client of the firm, it may be a really important customer, it may be…

Melanie Hart: A supplier, who the business cannot operate without this supplier’s, you know, corporation.

Melanie Hart: And that brings into particularly sharp focus that real tension in making sure that the investigation is carried out.

Melanie Hart: you know, properly, independently, reaches sound, sound conclusions.

Melanie Hart: yes, of course, it’s going to be a challenge when that is, as I say, a client or, you know, a third party that is critical to the business. In practice, I think, as I say, it means, you know, you need to firstly have a very clear process,

Melanie Hart: Particularly in terms of being able to report third-party harassment.

Melanie Hart: Which is, in many organisations, there isn’t necessarily a separate policy about. Sometimes there’s no policy at all, or sometimes it will be a throwaway line that says, you know, harassment by, essentially, by anybody, including a third party.

Melanie Hart: In my experience, a lot of organisations that handle these matters well actually have a separate,

Melanie Hart: Process or policy on that, but that makes it, therefore, really clear that the organization wants to hear, if, if there has been, alleged harassment by third parties, clients included.

Melanie Hart: Rather than it just being wrapped up in the same process that might happen internally.

Melanie Hart: You know, obviously, a proper investigation, as I say, is a given, and, you know, particularly if you’re… the behavior that’s being alleged is serious, or it’s repeated, and again, it’s why you need to have an important internal process, because

Melanie Hart: What can happen is, it’s one client, it’s happened to somebody over here by one client, it’s happened to somebody over here by the same client, so it’s repeated by the client, but actually, if your employees internally don’t know that.

Melanie Hart: But if you have proper reporting systems in place, there is a greater chance that it will come, come to the surface.

Melanie Hart: As with everything, you know, document everything, the incident, all the steps taken.

Melanie Hart: The comms, so that, you know, that can be relied upon if you need to.

Mark McWilliams: Thank you, Mel. I’ve got one more question for you, which is, from a reputational standpoint, what does getting it right look like? How does a well-handled

Mark McWilliams: What does a well-handed response signal to employees in the outside world?

Melanie Hart: Absolutely, and I think, you know, it goes without saying that if you can emerge from this with your organisational reputation intact, that’s a sort of big tick in the box. These are inevitably always very challenging circumstances.

Melanie Hart: And allegations that are not easy, not easy to deal with.

Melanie Hart: And particularly in the current climate, and quite rightly, there is, there is an increasing,

Melanie Hart: Desire, need, trend for people to report this, and that is generally to be perceived as a good thing.

Melanie Hart: I don’t think there’s any evidence that incidents of sexual harassment at work are increasing or decreasing, it’s just that people are often feeling all free to be able to talk about those things, and so it is ultimately about what reaction there is.

Melanie Hart: You know, internally, if it’s dealt with properly.

Melanie Hart: The trust that that can build internally for employees to see that something has been dealt with well, and hasn’t been covered up, hasn’t been swept under the carpet.

Melanie Hart: hasn’t been approached of a, well, they’re a very important client, so we can’t do anything about this, is important. And equally, that messaging, you know, to external parties, whether it’s regulators.

Melanie Hart: Investors, future employees, you know, whoever that might be, is, is equally important.

Melanie Hart: I think the top tips, as I say, are to get your reputation communication strategy involved early on. So, whether that’s with legal advice, whether it’s with PR comms advice, you know, including the senior leaders, making sure that they’re involved early on.

Melanie Hart: Reacting swiftly, as I say, even if you can only say something on an interim basis early on, but so that there isn’t a chasm, a hole. We all know that internally, if you don’t say something, people will just fill that void by speaking.

Melanie Hart: And, you know, to a degree, that can happen externally, particularly if your organization has any sort of external reputation.

Melanie Hart: But be really clear on the communications. Be really clear to people about what is happening, what people can and cannot say. You know, if there is a need for people to keep things confidential, make that clear. Make it clear what that means and why, i.e. you’re not asking them to keep it confidential to cover up.

Melanie Hart: You’re asking them to keep it confidential because, for example, there’s an ongoing process.

Melanie Hart: I think, obviously, offer genuine support for everybody involved in the process.

Melanie Hart: Particularly to the complainant, but also for the person who is being complained about, and the other staff who may be involved, whether they’re directly involved as witnesses, or simply, you know, they may be part of a team that is very upset, discombobulated, whatever it is, by what’s going on, and making sure that that support is available.

Melanie Hart: And then, you know, I think the lessons learned from some of the very public,

Melanie Hart: examples we’ve talked about is just the sort of visible follow-up and follow-through on… on any sort of lessons learned.

Melanie Hart: Having an independent person come in and investigate, or write a report, or whatever it may be, and then, you know, a year later, or five years later, or whatever it is, those same issues come to the fore, and it, you know, transpires that that report was…

Melanie Hart: Filed in somebody’s top drawer and never looked at again. You know, reputationally, that looks particularly bad.

Mark McWilliams: Okay, thanks very much, Mel. We’ve covered quite a lot there. So, Sophie, now it’s your turn.

Mark McWilliams: I’m a bit conscious of time, so I’m gonna cut down some of the questions I was going to ask. But Sophie, most people in this room will be thinking about harassment primarily through the lens of employment law and civil liability. Can you help us understand when conduct in the workplace might cross the line into criminal territory?

Sophie Tang: Thank you, Mark, and thank you, Mel, for that. So, sexual harassment, as we’ve been discussing it so far today, is a civil wrong under the Equality Act. There’s no exact equivalent criminal offence that matches sexual harassment under the Equality Act, but the same conduct can constitute a range of other criminal offences.

Sophie Tang: It’s worth taking a pause and appreciating how broad sexual harassment in the workplace can be.

Sophie Tang: It can range from an ill-judged comment in the office, to an encounter at a Christmas party, to a long-standing relationship with a colleague that breaks down.

Sophie Tang: So the range of situations this covers is indicative of the range of potential criminal offences that could be triggered by this conduct.

Sophie Tang: And I’ve taken a whistle-stop tour of potential criminal offences that we see a lot arise in this context. There’s rape under the Sexual Offences Act, which is,

Sophie Tang: penetration with a penis, without the person’s consent or reasonable belief in that person’s consent. And of course, a lack of consent can arise from a lack of capacity to consent, such as through intoxication.

Sophie Tang: There’s sexual assault, which is intentional sexual touching, again, without consent.

Sophie Tang: There are stalking and harassment offences, so that, in a general sense, is embodying a course of conduct that causes someone alarm, or distress, or fear of violence. So the type of conduct that covers is following someone, attempting to contact that person, publishing material about them online.

Sophie Tang: There’s also the offence of controlling and coercive behaviour, so that’s where someone engages in behaviour, which is in law, controlling or coercive.

Sophie Tang: Such as monitoring, someone’s time, controlling where they go, who they see, controlling their finances.

Sophie Tang: And there’s also a range of communications-based offenses, such as, for example, malicious communications using social media or apps to send someone, offensive or threatening messages.

Sophie Tang: There are sexual-based communications offences, such as cyber flashing, sending sexual images without that person’s consent, threatening to share intimate images you hold of someone without their consent.

Sophie Tang: And there’s also creating a copy of an intimate image without that person’s consent.

Sophie Tang: And there are also image-based sexual offences, such as voyeurism and upskirting, where one observes or records a private act, or takes a voyeuristic photo without that person’s consent.

Sophie Tang: I could speak for hours about potential criminal offences that could be engaged here, but I think Mark and Mel might tell me off. So, that’s, those are the main offences that we see a lot in this context.

Sophie Tang: Now, the lawyers amongst us might say, well, the civil threshold, which is balance of probabilities, which is what applies in a sexual harassment under the Equality Act, that is,

Sophie Tang: Much lower than that’s required in the criminal context.

Sophie Tang: That is right. To convict someone of a criminal offence, a jury or a bunch of magistrates must be sure that the criminal offence has been committed, and that… you might know that as beyond reasonable doubt, that’s another way of putting it.

Sophie Tang: That’s true, but, just because only the civil threshold has been passed, it doesn’t mean that criminal process can’t begin. And that’s because to arrest someone, all police need is, reasonable grounds for suspicion that an offense has occurred.

Sophie Tang: And then for the CPS, so the Crown Prosecution Service, who would be charging these types of offences, and to charge something means to decide to send a case to court to be tried. For the CPS to decide to charge something.

Sophie Tang: that test is just one of balance of probabilities on the evidence. So, the CPS must decide that there’s enough evidence in this case that there’s a more than 50% chance that a jury or a bench of magistrates will convict of that offence.

Sophie Tang: So employers should not assume that just because the conduct only meets the civil definition, that the conduct can’t also be criminal.

Sophie Tang: It’s important to flag that, in June of this year, Section 250 of the Crime and Policing Act came into force, and this extended corporate criminal liability from just economic crimes to all crimes.

Sophie Tang: So this means when a senior manager of an organization commits a criminal offence while acting within the actual or apparent scope of their authority, the organization may be treated as having committed that criminal offence.

Sophie Tang: You may ask, what is a senior manager? So, under criminal law, a senior manager is someone who plays a significant role in the making of decisions about how the whole or substantial part of the activities of that company are managed.

Sophie Tang: So, theoretically, if you have a senior manager who is, for example, harassing, harassing a colleague.

Sophie Tang: The company could risk liability if that senior manager was acting within the actual or apparent scope of their authority in engaging in that conduct.

Mark McWilliams: Excellent, thank you, Sophie. If an employer becomes aware of contact that might be criminal in nature, what should they do? Is there an obligation to report, and how does an internal investigation interact with a potential police investigation?

Sophie Tang: There’s generally no legal obligation on an employer to report suspected criminal conduct to the police, with certain exceptions, such as within money laundering and terrorism and certain safeguarding contexts.

Sophie Tang: However, the employee may wish to report an offence to police, and the employer absolutely should not discourage them from doing so.

Sophie Tang: The interaction between an internal investigation and a police investigation is complex.

Sophie Tang: The starting point must be that the police investigation will take precedence.

Sophie Tang: And the reasons for that are clear.

Sophie Tang: The consequences following a police investigation are severe. You could result in a trial, a criminal conviction, someone could go to prison.

Sophie Tang: It’s really important that employers do not take any steps that could prejudice that criminal investigation or prosecution.

Sophie Tang: If police are involved, or could become involved, in the allegations that have arisen in this work context, the employer must take legal advice before proceeding with any internal investigation.

Sophie Tang: And this is because any…

Sophie Tang: Testing of that criminal allegation outside of that criminal process, i.e. the police investigation, has the potential to conflict, influence, and contaminate that criminal process.

Sophie Tang: You may have a situation where an employer may say, well, we’re not looking into a crime, we’re looking at sexual harassment, we’re not going to touch the criminal allegations and the alleged criminal conduct.

Sophie Tang: That may be true, but in that investigation, are you taking accounts from witnesses? Are you assessing credibility of witnesses? Are you assessing the credibility of the complainant and the suspect? Are you making any findings of dishonesty, of bad faith in the suspect?

Sophie Tang: If you are, these are all really relevant to any parallel criminal investigation.

Sophie Tang: So even if the subject matter of your investigation is not ex-criminal offence, sexual assaults, harassments, malicious communications, if you are investigating an allegation that forms part of what is being reported to police, then you still risk prejudicing that criminal investigation and process.

Mark McWilliams: Thank you very much, Sophie. I’m going to move to our next, section now. Thanks,

Mark McWilliams: both.

Mark McWilliams: So, the second topic is workplace relationships.

Mark McWilliams: People spend a significant proportion of their working lives at work. It’s not surprising that, personal relationships, including romantic ones, develop in the workplace.

Mark McWilliams: The increase in hybrid working may, also have had an impact here, in that relationships can develop in less visible ways over messaging platforms or apps, and outside core working hours, and outside the office, even, when people are working remotely.

Mark McWilliams: This can mean that an employer is less likely to know about relationships between colleagues. Next slide, please.

Mark McWilliams: The question for employers isn’t whether romantic relationships in the workplace happen. They do, and they will. The question is, how do you manage them sensibly, fairly, and in a way that protects everyone involved?

Mark McWilliams: Many of you remember the coverage of the Coldplay concert incident last year, where a senior executive was filmed in a compromising situation with a colleague, and the footage went viral.

Mark McWilliams: Now, I deplore anybody who attends a Coldplay concert, but whatever one’s views on the individuals involved, it’s a stark illustration of how quickly a private matter can become very public, with significant consequences for the people involved and for the organization that they work for.

Mark McWilliams: So what does the law say about workplace relationships?

Mark McWilliams: Next slide, please.

Mark McWilliams: There’s no specific law in the UK that prohibits consensual romantic relationships between colleagues. Employers can’t simply ban relationships from occurring.

Mark McWilliams: But the law can be engaged by the consequences in the context of those relationships, and there are several legal frameworks that employers need to keep in mind.

Mark McWilliams: Under our old friend the Equality Act 2010, where a workplace relationship breaks down, or when one party feels pressured into a relationship.

Mark McWilliams: Or where there’s a power imbalance, there can be a risk of a sexual harassment claim.

Mark McWilliams: Sometimes the line between a consensual relationship and unwanted conduct of a sexual nature can become blurred, particularly where there’s a significant difference in seniority between the parties.

Mark McWilliams: Where there’s a relationship between a manager and a direct report, there’s obvious risks about conflicts of interest. There can be favouritism in performance management, promotion, pay decisions, and this can give rise to claims of unfair treatment by other employees, or just undermine trust between

Mark McWilliams: Employees and the management.

Mark McWilliams: Romantic relationships can create risks around the sharing of confidential information, because, and, well, and that’s particularly acute in professional services environments, like law, where client confidentiality is, paramount.

Mark McWilliams: And also, information about personal relationships is sensitive personal data under data protection laws, so it should only be shared with a small group of people who need to know about that data.

Mark McWilliams: Employers have a general duty of care to their employees, and where a relationship involves significant power imbalances, or where one party’s vulnerable, the employer may need to consider whether their duty of care requires them to take some action.

Mark McWilliams: Any action that an employer takes, though, regarding workplace relationships should be fair, proportionate, and applied consistently. If, say, one party’s moved to a different team, or in more serious cases, disciplinary action is taken, there could be a risk of an unfair dismissal claim or of allegations of discrimination.

Mark McWilliams: in addition to, harassment and sexual harassment,

Mark McWilliams: There can be issues of discrimination or victimization. If, for instance, one party alleges that they’re being subjected to discrimination because of their sex, or that the post-breakup behaviour of their ex-partner amounts to victimization.

Mark McWilliams: Constructive dismissal, if the employer’s reaction to a relationship or its breakup leads one passage to feel that they have no choice but to resign.

Mark McWilliams: They might bring a claim, against the employer for putting them in that position.

Mark McWilliams: And there can be regulatory issues. So the FCA’s rules on non-financial misconduct came into effect on 1st of September this year, and they apply to all FCA-regulated firms. Regulated firms are going to have to keep that in mind, too.

Mark McWilliams: Next slide, please.

Mark McWilliams: So…

Mark McWilliams: What should employers actually do? The starting point, if work relationships are a cause for concern for the business, is having a clear, well-communicated workplace relationships policy. This is sometimes called a personal relationships at work policy.

Mark McWilliams: And to train the managers on it.

Mark McWilliams: Such policies are difficult to police, though, and they’re not very common in the UK.

Mark McWilliams: It’s important, therefore, that any relationships at work policy, if it’s introduced, is carefully drafted.

Mark McWilliams: The point to remember is that such a policy won’t prevent relationships from forming, but it should set out clear expectations to provide a framework for managing them.

Mark McWilliams: If you don’t have a policy.

Mark McWilliams: You’re gonna end up having to deal with these issues in an ad hoc, case-by-case manner, and that can lead to inconsistencies.

Mark McWilliams: Key elements of a good policy might include a requirement of disclosure, so the employees in a relationship need to tell their line manager about it.

Mark McWilliams: The emphasis, if that’s going to be the rule must be that this isn’t about policing people’s private lives, but enabling the employer to manage any conflicts appropriately.

Mark McWilliams: There should be guidance on managing conflicts. The policy should set out how the employer will respond to a disclosed relationship. For example, circumstances in which it would be appropriate to adjust reporting lines, or recuse the relevant manager from discussions that affect the partner.

Mark McWilliams: There should be a non-retaliation commitment so that employees should feel safe disclosing a relationship without fear of punishment for doing so.

Mark McWilliams: If your preference is to not have a policy, then the principles and areas of risk can be covered in existing policies, which can be reviewed and updated, can be covered in the Anti-discrimination and harassment policies, or codes of conduct.

Mark McWilliams: The key, practice point for employers is to remain neutral and even-handed. Breakups are difficult, and it’s inevitable that both parties will be in distress. So.

Mark McWilliams: they should check in and offer support, and you should discuss adjustments with the affected parties. If one party makes allegations of harassment against the other or raises the issue of consent.

Mark McWilliams: Address those in line with the existing internal policies.

Mark McWilliams: Even if everything’s going well, be mindful of the other staff and address any concerns raised about conflicts of interest or favouritism.

Mark McWilliams: So with that in mind, I’m going to ask Melanie and Sophie some more questions. Melanie, I’ll start with you. The Coldplay incident shows how a private matter can become a very public one almost instantaneously.

Mark McWilliams: From a reputation management perspective, what should an organization’s immediate response look like when something like that happens?

Melanie Hart: Absolutely, Mark. I mean, we will all remember how viral and how quickly that incident, went. Although one question I always, pose in these sessions is.

Melanie Hart: who can remember the name of the organization that both those individuals belong to? Some will, but many of us, and I have to say, me included, even though I talk about the incident fairly frequently.

Melanie Hart: You know, it was a, it was a startup organization, it wasn’t a household name, and, you know, there is a lesson there, I think, in terms of how the response, plays out.

Melanie Hart: Even when something has, you know, burned very brightly and very suddenly become public.

Melanie Hart: I, I think the lessons, for me on, on, on that one were,

Melanie Hart: you know, the response from the organization there was relatively good in terms of the announcements they made. I have to say, I wouldn’t do what that organization did, which was that they then took the incident and spun it with, I believe, voiceover from Gwyneth Paltrow, given the Coldplay connection.

Melanie Hart: To actually start selling their products, which,

Melanie Hart: I believe in, sort of, comms and PR circles in particular, kind of really, split the fields and thought it was a brilliant way of turning a crisis into an opportunity. But I think, you know, the other consensus, and certainly my view, was that it was…

Melanie Hart: arguably trivialising what was ultimately a serious incident. Of course, it was a consensual relationship,

Melanie Hart: But it probably didn’t have the consent of the two people’s respective spouses, and…

Melanie Hart: More importantly, the difficulties that it potentially caused within the, the,

Melanie Hart: cohort of staff, who either had known, did know, would know, about it. And so I think it goes back to some of what I was saying earlier about

Melanie Hart: you know, be thoughtful about what you’re saying, be quick to put out a response. Obviously, that needs to be tempered, in a scenario where you are dealing with a consensual, a consensual relationship, as opposed to the sort of more crisis nature of something where it’s a harassment allegation.

Melanie Hart: You know, if it’s… if it’s something like this where there’s a real social media,

Melanie Hart: response, and it’s gone viral, that obviously has a different PR cons response that you will need, depending on your organization, and as I say, whether that is something that is

Melanie Hart: an important channel of communication, for your staff, your customers, etc. But I would say, yeah, don’t necessarily rush to respond in the way that they did.

Mark McWilliams: Thanks very much, Melanie. I’m conscious that, we’re brushing up against time. We have the room, the virtual room, as it were, until 10.15, so, we will carry on with our discussion and be available for some questions at the end of

Mark McWilliams: that. I’m going to move on to some questions for Sophie.

Mark McWilliams: Sophie, we’ve talked about the civil and employment law dimensions of workplace relationships. Are there circumstances where a workplace relationship or its breakdown could give rise to criminal liability, and what might that look like?

Sophie Tang: Absolutely. Just like any normal or outside-of-work relationship, its breakdown can give rise to criminal liability, and there are particular nuances in a workplace context which makes that more pronounced.

Sophie Tang: To generalise, where a breakdown of a relationship turns criminal is where there’s conduct by one party that the second party doesn’t consent to, is unwanted, and which causes them alarm and distress.

Sophie Tang: I mentioned earlier a range of criminal offences that apply, in a workplace sexual harassment context. That applies equally to the breakdown of workplace relationships.

Sophie Tang: Just to highlight a few of the particular nuances, of a workplace relationship breakdown. For example, in stalking and harassment.

Sophie Tang: I mentioned that’s when,

Sophie Tang: where a course of conduct causes a person alarm and distress. That can arise, and we see it arise in particular when a relationship ends and one party refuses to accept that.

Sophie Tang: Now, in a workplace environment, that is exacerbated, because the two parties can’t get away from each other, they see each other every day. So there’s a more heightened risk in a workplace relationship of that kind of conduct occurring.

Sophie Tang: Another offence that’s worth noting is controlling and coercive behaviour.

Sophie Tang: That is particularly relevant when there is a power imbalance between two parties. For example, a manager and their reportee, or a manager and a junior member of staff.

Sophie Tang: If that manager uses their status in the workplace as a way to exert power over that second party, that can be part of controlling and coercive behaviour.

Sophie Tang: The key message is, what starts as a consensual relationship can, if it ends badly, give rise to conduct that is not just disciplinary, but also a criminal matter.

Mark McWilliams: Thank you, Sophie. So, stalking and harassment in a criminal sense can sometimes emerge from the breakdown of a workplace relationship. Can you talk us through what that looks like in practice?

Sophie Tang: The criminal stalking and harassment are distinct from the Equality Act’s definition of harassment, in that it doesn’t require a protected characteristic.

Sophie Tang: Stalking and harassments can occur if there is simply a course of conduct that causes another person alarm, distress.

Sophie Tang: Fear of violence, and the perpetrator ought to have known that their behavior would amount to harassment.

Sophie Tang: So in a workplace context, this might look like persistent unwanted calls, messages, emails, following and monitoring a colleague turning up at their home, posting about them on social media.

Mark McWilliams: Thank you, Sylvain. It’s worth noting, that the employer has some employment obligations here, too. They have a duty of care to the employee being stalked or harassed, so this includes taking the complaint seriously, assessing the risk, and taking proactive steps.

Mark McWilliams: Those types of steps might include adjusting working arrangements to minimise contact, carrying out an investigation, and possibly disciplinary action.

Mark McWilliams: Considering suspension during an investigation, and where it’s appropriate, supporting the victim in obtaining a civil injunction or reporting to the police.

Mark McWilliams: Failure to act could impose… expose the employer to a personal injury claim from the victim, as well as a sexual harassment claim for… which they would be vicariously liable. And, of course, reputational damage.

Mark McWilliams: Employers should also be alert to the fact that stalking behaviour can escalate, and what begins is, and what messages can become something far more serious.

Mark McWilliams: So, Sophie, another question. If an employee comes to HR and says that they’re being stalked or harassed by a former partner who is also a colleague, what should the employer do? And what point does this become a matter for the police, rather than just HR?

Sophie Tang: So first, the employer must take the complaint seriously.

Sophie Tang: I’d advise you do not minimize it or treat it simply as a personal matter between two colleagues.

Sophie Tang: Consider, is the employee in immediate danger? Conduct a risk assessment. If there is immediate danger, then the police should be contacted.

Sophie Tang: The employer should consider separating the parties by way of adjusting working arrangements, reporting lines, or locations to minimize contact, even just on a temporary basis, pending some further investigation.

Sophie Tang: Document everything. Keep a detailed record of all reports, incidents, and steps taken.

Sophie Tang: And make it clear to the complainant that they have the right to report the matter to police, and support them if they wish to do so. Do not discourage them.

Sophie Tang: And you may want to consider offering them independent legal advice about making that report.

Sophie Tang: When does it become a matter for police, rather than just HR?

Sophie Tang: Ultimately, it becomes a matter for police when the complainant wants to involve the police.

Sophie Tang: As mentioned earlier, there is no criminal or legal duty, except in some limited circumstances, for an employer to report a crime to police.

Sophie Tang: But for…

Sophie Tang: Other reasons, reputational safety, employment law reasons, an employer may wish to involve the police, for example, if very serious criminal events are being alleged, particularly if there’s a threat of violence, or, the complainant fears for their safety.

Sophie Tang: If the conduct is persistent and escalating, despite intervention by the employer.

Sophie Tang: If the perpetrator’s conduct extends beyond the workplace, for example, by turning up at the complainant’s home, and if the employer is concerned about harm to others in their workplace.

Sophie Tang: It’s important to note that a prosecution without support by the complainant can be quite difficult.

Sophie Tang: It’s possible, but it can be difficult.

Sophie Tang: As an employer, you should bear in mind as well that reporting something to police when the complainant

Sophie Tang: Doesn’t want that, can be damaging to the relationship between employer and employee.

Sophie Tang: it may also cause issues later down the line. For example, if the complainant isn’t ready at that moment in time to report it to police, but the employer does so anyway, and the complainant doesn’t engage with police, doesn’t support any investigation or prosecution, but then

Sophie Tang: In a few months, years down the line, they change their minds. That initial reaction may be damaging to that criminal process.

Mark McWilliams: Very sensible. Okay, one more question for you, Sophie. What’s your single most important piece of advice for a general counsel or an HR director trying to navigate a situation where a workplace relationship is broken down badly, and there are potential criminal dimensions?

Sophie Tang: Well, my single most important piece of advice would be to get specialist criminal law advice early.

Sophie Tang: Do not assume that employment lawyers or HR alone can manage a situation that may have a criminal dimension. As hopefully is clear from today’s talk, the two disciplines require different expertise, and the stakes are very different.

Sophie Tang: For example, as you’ve heard today, hopefully employment law and criminal law operate on different timescales, different rules of evidence and procedure, and decisions taken in an employment context can have unintended consequences in a criminal context.

Sophie Tang: The other important advice is that the interests and rights of both the complainant and the suspect are vital.

Sophie Tang: And that means the interests of the complainants in having their complaints properly investigated and potentially tried in a court of law, but also the suspect’s rights of defense and their rights to a fair trial.

Sophie Tang: An organization should be really mindful of respecting those rights and interests, and ensuring they don’t do anything that could potentially interfere with those.

Mark McWilliams: Thank you, Sophie.