7th June 2023

The rise of the workplace ‘grey area’: employment law lessons from the Schofield scandal

Sophia Smout

Trainee Solicitor

The fallout of Phillip Schofield and ITV has dominated headlines over the past week, and has once again drawn attention to the rise of problematic ‘grey areas’ within the workplace.

In March, the BBC found itself in an uncertain position over its social media policy, after Gary Lineker’s controversial asylum policy tweet revealed a notable lack of clarity over what was, and wasn’t, appropriate for employees to publish.

Whilst there are numerous nuanced lessons to be learnt from the Schofield scandal, from an employment law perspective it has undoubtedly drawn attention to a second, equally pressing, ‘grey area’: that of romantic workplace relationships, and the problems which could arise for particular employers if they do not make their stance on these clear.

So what is the legal position on workplace relationships, and what can employers do to avoid finding themselves in this potential ‘grey area’?

Firstly, it is important to note that there is no law against workplace relationships; indeed, employers must be mindful of, and respect, their employees’ legal rights to private and family life under Article 8 of the European Convention on Human Rights.

However, practically speaking, romantic relationships in the workplace can alter the dynamic between employees, create conflicts of interest, and, should things go wrong, cause negative impacts on the business.

Employers should also bear in mind their duty of care to employees to ensure that they do not suffer injury at work – which includes protecting their mental health, and ensuring their safety from harassment and victimisation. Employers must therefore take reasonable steps to ensure that employees are protected from inappropriate pursual, or from suffering any detriment at the hands of their colleagues if relationships go wrong.

As with so many employment issues, many of these potential problems can be mitigated (if not avoided altogether) by taking a clear stance on the question of workplace romance. Gaby Hinsliff suggests inserting 'stiff clauses' into contracts of employment to prohibit workplace relationships altogether. In most businesses, however, such provisions would be vastly disproportionate, and risk breaching Article 8 unless there is a strong argument for doing so (if your organisation is MI5, for instance).

In many cases, a more proportionate response would be to draw up a staff policy which outlines the employer’s position on workplace relationships. These could include, for instance, a recommendation that employees – both current and prospective – should report personal relationships with colleagues, or those which might impact their work, to line managers or HR on a confidential basis, provided that the employer can show an objective reason for doing so.

Employers should also ensure that structures are in place to support employees who suffer mental health issues where workplace relationships (of whatever sort) break down, to facilitate whistle-blowing and prevent unwanted behaviour between colleagues. As with all staff policies, these structures should be modified if circumstances change or problems persist. Seeking the advice of experienced employment law professionals can also be a useful way to ensure that any such policies achieve the desired outcome, and to enable employers to obtain a clear understanding of their legal responsibilities and obligations within this undoubtedly difficult area.

Regardless of the chosen approach, perhaps the most essential takeaway from the Schofield scandal is the importance of promoting a positive, transparent workplace culture, in which good communication, strong support structures and clear boundaries are prioritised. In so doing, employers can help to ensure that they are striking the right balance between respecting the privacy of their employees and protecting the efficacy and success of their businesses.