HCR Law Events

14 February 2023

My (Un)Funny Valentine

Valentine’s Day then

A day now characterised by overpriced red roses, 6ft teddy bears and love hearts originally had a much simpler romantic purpose. Though there are many theories as to its origin, the most widely recognised is that Saint Valentine of Rome restored sight to the blind daughter of his jailer, a story which was later embellished to include the romantic passing of a letter from the Saint to the daughter before his execution, signed ‘Your Valentine’.

As the years went on, this tragic love story is believed to have started the tradition of secret admirers sending anonymous letters to their ‘Valentine’, which has now morphed into the commercialised celebration we all know and love – or tolerate.

Valentine’s Day now

Though this sounds romantic in theory, Valentine’s Day can raise some issues in the modern day, especially regarding romance in the workplace. If the couple involved are in an existing relationship, this is unlikely to cause a problem (unless one person forgets). However, if an employee decides to use the celebration to reveal their romantic feelings to an unsuspecting colleague, or even just as an excuse to send a cheeky joke to the office group chat, the lovestruck sender could end up in a date with HR rather than the object of their affection.

The most serious question to ask is, can an unwanted Valentine constitute sexual harassment?

Sexual harassment

Under the Equality Act 2010, employers have a duty of care which includes a responsibility to protect their employees, workers, contractors and even job applicants, against sexual harassment at work.

Sexual harassment is recognised to have occurred when person X engages in unwanted conduct of a sexual nature with person Y, which has the purpose or effect of violating Y’s dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for Y. This will depend on both subjective and objective tests: Y’s perception, the circumstances of the case, and whether it is reasonable for X’s conduct to have that effect.

Examples of sexual harassment include:

  • Verbal harassment of a sexual nature, which can include jokes referring to sexual acts
  • Any sexual remark or physical gesture towards someone’s body or appearance
  • Asking questions or instigating a discussion about anyone’s sex life, whether real or imagined
  • Displaying or possessing sexual or pornographic images, either digitally or on a paper copy, such as on posters or cards
  • Unwanted touching, e.g. a hug
  • Unwelcome sexual advances

While a few may consider some of these examples to be workplace ‘banter’, if it is unwanted attention and the recipient is made to feel uncomfortable, an approach on Valentine’s Day could constitute sexual harassment which has very serious repercussions.

What should an employer do for Valentine’s Day?

While Valentine’s Day gives us a reminder of these potential issues, an employer would be well-advised to implement the following regardless of the time of year:

  • Ensure that you have an up-to-date Harassment or Equal Opportunities policy which is readily accessible, and give your employees a gentle reminder of it, making it clear that any reported issues will always be taken seriously
  • Educate your employees. Offer training and guidance on what behaviour constitutes sexual assault, explaining how serious it is and how to avoid creating a situation where someone may feel harassed, and also how to identify and report a situation which has made you feel uncomfortable or violated
  • Create a safe space for people to report behaviour or situations they perceived as harassment, and deal with any complaints promptly, effectively, and discreetly if necessary.
  • Enforce a ban on exchanging valentines, or other messages of adoration, at work. You do not have to ban the celebration completely, just the exchanging of gifts and cards in the workplace which could help to prevent anyone feeling offended, embarrassed or upset. You could recognise the day in other ways, through simple decorations, a Valentine’s Day themed charity event, or even by hosting a wellbeing day focused on self-care
  • If a grievance is raised concerning sexual harassment, ensure that you have and follow a good grievance policy, which may include instructing an external HR team to deal with any sensitive or serious issues, especially if the grievance involves a member of management

What if it’s too late?

If cupid’s arrow has already caused some damage, then it is unfortunately time to instigate the grievance procedure. If the valentine was sent in the traditionally anonymous style, part of your grievance investigation will now need to include finding actual proof of who sent the offending message which can be a challenge.

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About the Author
Ben Stanton, Partner

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