For HR professionals, the day-to-day reality of people management can often be stranger than fiction, but the BBC’s new gritty drama, Rules of the Game, was too much for us to resist. Now that it has concluded, we thought we would share some of our reactions as employment lawyers with you, without spoiling the fun! (*Spoiler alert* for those who haven’t yet watched it).

The series’ writer, Ruther Fowler, was inspired by the #MeToo movement to base her screenplay within the fictional, toxic workplace of Fly Dynamic, which is dominated by misogynistic attitudes and power-plays. It charts the arrival (and dramatic departure) of a new HR director as she uncovers the dark secrets of the past and the damage caused by the proliferation of these attitudes.

A particular theme is the sexual harassment and abuse of young, female employees by the male business owners.

Many will recall a time when their own workplace culture resembled that portrayed in the series and may have experienced or witnessed similar damage.

However, what also struck us were the positive steps which have been taken to address some of these past wrongs and those things which are unlikely to get past HR professionals (or their supporting lawyers!) now.

  1. Misuse of NDAs:

The series shows how companies have used non-disclosure agreements or confidentiality clauses in settlement agreements in the past, to pay for the silence of victims of sexual harassment at work.

What is not explained is that, with changes in whistleblowing laws, such provisions are no longer lawful if they seek to prevent individuals from reporting wrongdoing which is in the public interest.

Yet the position is far from resolved, despite several reports and inquiries into this topic by the EHRC, the Parliamentary Women and Equalities Committee and a Government consultation. The promised legislative changes to prohibit the use of NDAs to prevent individuals from disclosing information to the police and other regulated professionals about sexual harassment and discrimination (whether in the public interest or not) have not yet appeared.  For now, we have a formal Government response which recommends that such activities be made unlawful (perhaps when the current distractions have died down), and an onus placed on solicitors, who will now be in breach of their regulatory obligations if they produce or sign off on a document which had that effect.

  1. Dealing with mental health issues

Fly Dynamic is portrayed as a caricature of poor workplace management. Tess, the lead character openly pops pills and turns up drunk and late to work. Eventually, we understand that her issues are largely down to lack of support following the death of her friend and colleague at a work event, her own sexual abuse by senior members of staff, the failure of senior, female members of staff to acknowledge or challenge that abuse (because she had suffered similarly), and the fact that she has been paid (under one of the aforementioned NDAs) for her silence.

The new Head of HR is shown to take positive steps when she takes the time to listen to Tess, offers her professional counselling and arranges wellbeing activities on company premises, including yoga.

Tess’ behaviour poses glaringly obvious issues to the business including:

  • setting a precedent for other staff members that such behaviour is tolerated by the business;
  • disruption and upset to other members of staff who are victims of her aggressive outbursts;
  • financial and workforce-management strain on the business resulting from her repeated absences;
  • the risk that a more switched-on employee could bring claims for:
    • breach of contract
    • discrimination if their mental ill-health amounts to a disability in law
    • constructive dismissal if they claim they were forced to resign
    • unfair dismissal if they were dismissed without a proper process, whilst signed off sick
    • harassment under the Protection from Harassment Act 1997.

According to statistics from 2020/21, there are 822,000 workers in the UK suffering from work-related stress, depression or anxiety. Many employers will therefore be all-too familiar with the steps they should take to support members of staff struggling with such issues, including offering a willing ear, encouraging them to join staff support groups and putting them in touch with the Employee Assistance Programme.

  1. Workplace relationships

The most senior men at Fly Dynamic are shown to have no compunction about sexual relationships with their younger, female staff with the suggestion is that this is a tradition which has passed down the generations.  The most senior female member of staff, Maxine’s character, is shown to have adopted a “can’t beat them, join them” attitude to self-preservation by adopting a male persona.  By comparison the less senior female staff members are shown to suffer, both personally and professionally at the hands of the toxic power-dynamic.

The mere fact of a workplace relationship may not be sufficient reason to discipline an employee and staff do have a protected human right to a private and family life. However, it may cause practical issues for employers, especially if the staff in a relationship work in close proximity or have a line-management relationship as well.

Some businesses have introduced American-style “love contracts” or policies which require staff to disclose relationships with colleagues to their employers, to enable a pro-active role in regulating their workplace interactions. Others simply rely on staff training to ensure staff self-regulate their behaviour.

Whether you enjoyed the slightly mad but salient exposé of toxic workplace culture in this series, or found it a clichéd caricature of archaic attitudes, there is no doubt that its themes echo to varying extents in today’s workplaces and that there are genuine lessons to be taken from it.

If you would like further advice tailored to your particular circumstances, please contact us.