1. Kakabadse, A and Kakabadse, NK Intimacy: An International Survey of the Sex Lives of People at Work (London: Palgrave, 2004) uses statistics from the Global Sex Survey conducted by Durex, at p 13.Google Scholar

2. UK Offices Simmering with Passion (11 February 2004), available at http://www.management-issues.com.

3. See, eg, ibid; Fox Williams Love Hurts, available at http://www.foxwillams.com/news/article; Whitemore, S Employee relationships: it’s a workplace affair’ (2004) 54 Employment Law Journal 22 Google Scholar; ;

4. See Schultz, V ‘The sanitized workplace’ (2003) 112 Yale Law Journal 2061 CrossRefGoogle Scholar for a full account of the position in the USA. An interesting example of such policies affecting even the most senior employees in an organisation is the resignation in 2005 of Harry Stonecipher, CEO of Boeing, following revelations by a whistleblower of an affair between him and a female executive of the company, who did not report to him. Boeing stated that he had violated the company’s code of conduct, which stated that ‘an employee will not engage in conduct or activity that may raise questions as to the company’s honesty, impartiality, reputation or otherwise cause embarrassment to the company’. The Financial Times commented that ‘[t]o some overseas, the blurring of professional and personal ethics might also seem like an example of a new Puritanism in the US’: ‘New Puritanism blurs professional ethics’Financial Times 8 March 2005 at p 34.

5. For a full exposition, see MacKinnon, CA Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven: Yale University Press, 1979).Google Scholar

6. Meritor Savings Bank v Vinson (1986) 477 US 57.

7. See Morrison, T (ed) Race-ing Justice, En-gendering Power Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality (New York: Pantheon, 1992).Google Scholar

8. See Burlington Industries, Inc v Ellerth (1998) 524 US 742; Faragher v City of Boca Raton (1998) 524 US775.

9. Cohen, JL Regulating Intimacy: A New Legal Paradigm (Princeton: Princeton University Press, 2002) p 147.Google Scholar

10. See, eg, European Commission Recommendation on the Protection of the Dignity of Men and Women at Work [1992] OJ C27/4: ‘…unwanted conduct of a sexual nature…This can include unwanted physical, verbal or non-verbal conduct’. The Equal Opportunities Commission website describes sexual harassment as ‘unwelcome physical, verbal or non-verbal conduct of a sexual nature’: http://www.eoc.org.uk/cseng/advice/sexual_harassment__questions.asp. The Employment Equality (Sex Discrimination) Regulations 2005 define harassment as unwanted conduct.

11. See, eg, Rich, A Compulsory heterosexuality and lesbian existence’ (1980) 5 Signs: Journal of Women in Culture and Society 631 CrossRefGoogle Scholar; MacKinnon, above n 5, p 298, n 8, where she asks whether ‘under conditions of male supremacy, the notion of consent has any real meaning for women’.

12. As Pringle, Rosemary writes, ‘Rather than being yanked screaming into compulsory heterosexuality, most women actively seek it out and find pleasure in it’: ‘Bureaucracy, rationality and sexuality’ in Hearn, J et al The Sexuality of Organisation (Thousand Oaks: Sage, 1996).Google Scholar

13. Above n 6.

14. This attitude is particularly prevalent in higher education in the USA, where sexual harassment policies frequently contain consensual relationship policies; see Gallop, J Anecdotal Theory (Durham: Duke University Press, 2002) ch 4Google Scholar; . For examples of such policies, see the appendices to ). See also the debates, particularly amongst feminists, as to whether Bill Clinton’s sexual relationship with Monica Lewinsky, clearly ‘wanted’ by her, was nevertheless sexual harassment: G Steinem ‘Feminists and the Clinton question’New York Times 22 March 1998 at p 15.

15. Management theorists have developed models of different types of workplace romance, ranging from ‘companionate love’, where both parties are motivated by love, to ‘mutual user’ or ‘utilitarian’ relationships, where the parties have ego motives or job-related motives, and have predicted from this the likelihood of harassment occurring when relationships end and the type of harassment (‘quid pro quo’ or ‘hostile environment’, to use the American terminology) that is likely to occur; see research cited in Pierce, CA and Agunis, H ‘A framework for investigating the link between workplace romance and sexual harassment’ (2001) 26 (June) Group and Organization Management 206 at 210.Google Scholar

16. As Weber noted, ‘the more bureaucracy is “dehumanized”, the more completely it succeeds in eliminating from official business love, hatred, and all purely personal, irrational and emotional elements which escape calculation. This is the specific nature of bureaucracy and it is appraised as its special virtue’: M Weber in Gerth, HH and Wright Mills, C (eds) Essays in Sociology (Abingdon: Routledge, 1991) pp 215–216.Google Scholar

17. Schultz, V Reconceptualizing sexual harassment’ (1998) 107 Yale Law Journal 1683 Google Scholar; Schultz, above n 4.

18. Schultz ‘Reconceptualizing sexual harassment’, above n 17.

19. Schultz, above n 4, at 2065.

20. Ibid, at 2113.

21. Ibid, at 2134

22. Quinn, BA The paradox of complaining: law, humor and harassment in the everyday work world’ (2000) 25 Law and Social Inquiry 1151 at 1176.CrossRefGoogle Scholar

23. Baer, S Dignity or equality: responses to workplace harassment in European, German and US law’ in MacKinnon, CA and Siegal, RB (eds) Directions in Sexual Harassment Law (New Haven: Yale University Press, 2004) p 592.Google Scholar

24. Cohen, JL Regulating Intimacy: A New Legal Paradigm (Princeton: Princeton University Press, 2002) p 137.Google Scholar

25. See the website at http://www.foxwilliams.com/news/article.

26. Strathclyde Regional Council v Porcelli [1986] IRLR 135.

27. The Regulations were introduced as a result of the revised EU Equal Treatment Directive on gender equality, Council Directive 2002/73/EC [2002] OJ L269/15.

28. ACAS Bullying and Harassment at Work: A Guide for Managers and Employers (2005).

29. Eg ‘War on office party sex predators’ The Observer 25 September 2005.

30. The Industrial Relations Law Reports contain only two: Kidd v DRG (UK) Ltd [1985] IRLR 190 and Chief Constable of Bedfordshire Constabulary v Graham [2002] IRLR 15.

31. Ibid.

32. Case No 2401702/04, 11 August 2003, (2005) 138 (February) EOR Discrimination Case Law Digest 31.

33. See Fordham v Huntingdonshire District Council Case No 28920/90 (unreported) 1991; Glanville v Secretary of State for Social Services (unreported); John v Neat Borough Council (unreported) 27 June 1990 (both referred to in Graham, above n 30).

34. [1981] ICR 864.

35. Case No S/1061/94, 19 October 1994 (1995) 24 (Summer) EOR Discrimination Case Law Digest 7.

36. Case No 1802950/99, 22 November 1999 (1999) 44 EOR-DCLR 9.

37. Case No 2404003/03, 6 February 2004 (2004) 135 (November) EOR Discrimination Case Law Digest 30.

38. Sex Discrimination Act 1975, s 5(3).

39. In Chief Constable of Bedfordshire v Graham, above n 30, the policy of not allowing married officers to work in the same division affected considerably more women than men, as women officers were more likely to be married to serving police officers, and the employer could not justify the policy.

40. [1975] IRLR 362.

41. By agreement, the senior employee she was involved with resigned rather than be dismissed.

42. There had been an earlier incident, involving other employees, ‘when an irate husband appeared on the premises’.

43. It would also fall foul of the prohibition on discrimination of grounds of marriage, as two single employees in a relationship would not be subject to dismissal.

44. Procedural safeguards seem to be often ignored in this area. The new disciplinary and grievance procedures, introduced by the Employment Act 2002 (dispute resolution) on 1 October 2004 should lessen the incidence of individuals being dismissed without hearings and appeals.

45. Post Office v Foley/HSBC Bank v Madden [2000] IRLR 827, where Mummery LJ offered the view that to dismiss an employee ‘for politely saying “Good Morning” to his line manager’ would be an unreasonable response, but outside this extreme example ‘there will be cases where there is room for reasonable disagreement among reasonable employers as to whether dismissal for the particular misconduct is a reasonable or an unreasonable response’.

46. See Emokpae v Chamberlin Solicitors [2004] IRLR 592, discussed below, where the Court of Appeal commented of the applicant ‘In truth she is an innocent victim of an unfair dismissal, but with insufficient service to bring a claim’.

47. Human Rights Act 1998, s 3; Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

48. In X v Y [2004] EWCA Civ 662, [2003] IRLR 561, Mummery LJ stated, at para [56], that in respect of applying unfair dismissal legislation ‘it would be difficult to draw, let alone justify, a distinction between public authority and private employers. In the case of such a basic employment right there would normally be no sensible grounds for treating public and private employees differently in respect of unfair dismissal, especially in these times of widespread contracting out by public authorities to private contractors’.

49. See Incomes Data Services Employee Privacy in the Workplace (London: Incomes Data Services, 2001)Google ScholarPubMed Employee Supplement No 6, Series 2;

50. For a recent discussion, see M Rustad and S Paulsson Monitoring Employee E-Mail and Internet Usage: Avoiding the Omniscient Electronic Sweatshops: Insights from Europe (Suffolk University Law School, Paper 6, 2005).

51. Article 1, s 1: ‘A people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety, happiness and privacy’.

52. (2003) 113 Cal App 4th 525.

53. He also filed for wrongful termination in breach of public policy and sex discrimination. All three causes of action were summarily dismissed and Barbee did not challenge that decision re sex discrimination.

54. (2003) 539 US 558. The Supreme Court struck down a Texas statute prohibiting same-sex sodomy on the grounds that it violated the Due Process clause of the Fourteenth Amendment, overturning Bowers v Hardwick (1986) 478 US 186.

55. Ibid, at 532.

56. Article 8 being a Convention right which imposes on states a positive obligation to secure observance of those rights: X and Y v The Netherlands (1986) 8 EHRR 235 at 239–240.

57. In PG and JH v UK (Application No 44787/98) (unreported) 25 September 2001, the European Court of Human Rights said, at para 56, that ‘Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation, and sexual life are important elements of the private sphere protected by Article 8. The Article also protects a right to identity and personal development, and the right to establish relationships with other human beings and the outside world’. See also Peck v UK (2003) 36 EHRR 41.

58. Tribunals have so far taken a restrictive view as to whether Art 8(1) is engaged: in X v Y [2003] IRLR 561, the Employment Appeals Tribunal held that a transitory sexual encounter between consenting adults in a public toilet did not fall within the right to a private life. See also Theakston v MGN Ltd [2002] EMLR 22 (sexual activity in a brothel) and Pay v Lancashire Probation Service [2004] IRLR 129 (sado-masochistic fire-eating act in a nightclub), but note the injunction granted to Elizabeth Jagger concerning photographs of sexual activity in a nightclub doorway, reported in The Daily Telegraph 10 March 2005.

59. Pay, above n 58.

60. Lustig-Prean and Beckett v United Kingdom (2000) 29 EHRR 548 (ban on gays in the military); Kara v United Kingdom (Application No 36528/97) (unreported) 22 October 1998 (internal dress code).

61. According to Pay, above n 58, ‘the employment tribunal is the vehicle in which the margin of appreciation given by the Convention is delivered. Its appreciation of what is proportionate…is as much a matter of fact as it is of the application of law’.

62. McColgan, above n 49, at 125.

63. Smith and Grady v United Kingdom (2000) 29 EHRR 493 at para 89, referring to Dudgeon v UK (1982) 4 EHRR 149.

64. Ford, M Two conceptions of worker privacy’ (2002) 31 Industrial Law Journal 135.CrossRefGoogle Scholar

65. (1997) 24 EHRR 523.

66. Niemietz v Germany (1993) 16 EHRR 97.

67. See Smith and Grady, above n 63; Niemietz, above n 66. See further M Ford ‘Article 8 and the right to privacy at the workplace’ in Ewing, K (ed) Human Rights at Work (London: Institute of Employment Rights, 2000).Google Scholar

68. Kramer, GM Limited license to fish off the company pier: towards express employer policies on supervisor–subordinate fraternization’ (2000) 22 Western New England Law Review 77 at 131.Google Scholar

69. Kramer offers a typical example: ‘I very much value our relationship and I certainly view it as voluntary, consensual, and welcome. And I have always felt that you feel the same. However, I know that sometimes an individual may feel compelled to engage in or continue a relationship against their will out of concern that it may affect the job or working relationships. It is very important to me that our relationship be on an equal footing and that you be fully comfortable that our relationship is at all times voluntary and welcome. I want to assure you that under no circumstances will I allow our relationship or, should it happen, the end of our relationship, to impact on your job or on our working relationship’. This is sent together with the sexual harassment policy, and a signature block for the recipient to acknowledge receipt, etc.

70. Any such agreement would be likely to be ineffective in UK law to prevent litigation, as they would be seen as a purported attempt to contract out of the provisions of the Employment Rights Act 1996 with regard to unfair dismissal, s 203, and the Sex Discrimination Act, s 77(3), unless the agreement amounted to a valid compromise agreement.

71. See Kramer, above n 68, at 107.

72. See, eg, Fitzpatrick v British Railways Board [1991] IRLR 376.

73. Bell v Lever Bros [1932] AC 161; Horcal Ltd v Gatland [1983] IRLR 459; Sybron Corp v Rochem [1983] IRLR 253 (senior employee under a duty to disclose fraudulent conduct of subordinates, though not his own misconduct); Tesco Stores Ltd v Pook [2003] EWHC 823 (Ch), [2004] IRLR 618; Item Software (UK) Ltd v Fassihi [2004] IRLR 931.

74. Most companies leave the matter as part of a non-contractual policy, and in the absence of express words, it is unlikely that these would be construed as having contractual force; see Grant v South-West Trains Ltd [1998] IRLR 188 and cf Taylor v Secretary of State for Scotland [2000] IRLR 502.

75. Data Protection Act 1998, Sch 1.

76. The Employment Practices Data Protection Code, Part 2: Employment Records, p 56.

77. The only condition possibly of relevance here is s 2(1): ‘the processing is necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment’. This is unlikely to cover any contractual obligation, as this would not be ‘imposed by law’. Although it could be argued that the legal obligation to prevent unlawful sex discrimination, including sexual harassment, falls under this provision, this would be unlikely to justify monitoring all sexual relations in the workplace.

78. Though it is acknowledged that this requires the employee to resign, a drastic step.

79. UKEAT/0525/03 (unreported) 22 March 2004.

80. [1990] IRLR 288.

81. [1999] IRLR 572.

82. Ibid, at para 13. See also Brown v London Borough of Croyden UKEAT/0672/05 (unreported) 2005.

83. [2004] EWCA Civ 1653, [2004] IRLR 592.

84. Ibid, at para [30].

85. Ibid, at para [7]

86. [2005] EWCA Civ 142, [2005] ICR 931.

87. At para [64].

88. For an interesting argument that the bisexual supervisor does in fact exist in relatively large numbers, but that ‘monosexuals’ have erased bisexuality in their own interests, see Yoshino, K ‘The epistemic contract of bisexual erasure’ (2000) 52 Stanford Law Review 353.CrossRefGoogle Scholar

89. 561 F.2d 983 (DC Cir 1997).

90. At 97.

91. For a full discussion of this gap in US sexual harassment law, see Katz, MJ Reconsidering attraction in sexual harassment’ (2004) 79 Indiana Law Journal 101.Google Scholar

92. (1998) 523 US 75.

93. Ibid, at 80.

94. However, in Balgobin v London Borough of Tower Hamlets [1987] ICR 829, the Employment Appeals Tribunal accepted an argument that the employers ‘would have treated a situation where the victim was a man and homosexual advances were made’ in the same way; thus there was no sex discrimination. There was no evidence to suggest that the harasser was anything but heterosexual.

95. [2003] IRLR 512.

96. Ibid, at para [17].

97. Ibid, at para [110].

98. Ibid, at para [184].

99. This has, of course, been recognised by the UK courts: Strathclyde Regional Council v Porcelli [1986] IRLR 134 was a case where the harassing behaviour was not based in any way on sexual attraction, and Lord Nicholls of Birkenhead notes that sex-based harassment can occur because of hostility to women, rather than attraction, at para 15.

100. R Wintermute ‘Recognising new kinds of direct sex discrimination: transsexuals, sexual orientation and dress codes’ [1997] 60 Modern Law Review 334; ‘Lesbian and gay inequality 2000: the potential of the Human Rights Act 1998 and the need for an Equality Act 2002’ [2002] EHRLR 603.

101. UKEAT/0614/04/CK (unreported) 5 June 2005.

102. There was no direct appeal to the Employment Appeals Tribunal against this finding of fact.

103. [2005] EWCA Civ 142, [2005] ICR 931.

104. It could also be argued that both these cases do provide real comparators, who were in fact treated differently: the men doing the firing. This does not seem to have been considered in Martin, presumably because the man was the managing director of the company. In Emokpae, where a direct comparison with Mr Emezie could have been made, no such argument was put to the tribunal.

105. See Sturm, S Second generation employment discrimination: a structural approach’ (2001) 101 Columbia Law Review 458 and Cohen, above n 9.CrossRefGoogle Scholar

106. Hurley v Mustoe [1981] ICR 490.

107. Equal Treatment Directive (Directive 76/207/EEC ([1976] OJ L39/40)) revised by Directive 2002/73/EC ([2002] OJ L269/15).

108. Women and Equality Unit, Department of Trade and Industry Equality and Diversity: Updating the Sex Discrimination Act 1975 (March 2005).

109. See Equal Opportunities Commission Response to Department of Trade and Industry, Equality and Diversity: Updating the Sex Discrimination Act (May 2005); Trades Union Congress Response to the Government Consultation on Implementation of EU Equal Treatment Amendment Directive (May 2005).

110. M Rubenstein ‘Amending the Sex Discrimination Act’ (2005) 140 (April) Equal Opportunities Review 21.

111. Women and Equality Unit, Department of Trade and Industry Government Response to Consultation (URN05/1345) para 3.11.

112. Marleasing SA v La Commercial Internacional de Alimentacion (Case C-106/89) [1990] ECR 1-4135.

113. Directive 2002/73/EC, above n 107, Art 2(3).

114. Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1223, [2002] EMLR 78.

115. [2005] EWCA Civ 251, [2005] QB 848.

116. See Schultz, above n 4, at 2187, and, generally, Kakabadse and Kakabadse, above n 1.

117. Hearn et al, above n 12, at p 13.

118. JL Cohen ‘The hijacking of sexual harassment’ 6(2) Constellations 142 at 144.