The office romance is not a new phenomenon, but with more of us working longer hours, it’s no surprise that personal relationships with colleagues (which may or may not result marriage or long term partnerships) are commonplace. This article considers the issues this raises for employers and gives some practical tips on avoiding the legal pitfalls.
Office relationships can be a difficult legal area for employers to navigate due to the overlap between home and work life. Broadly, there are two scenarios that an employer may face: workers having a casual relationship and those who are married or living together.
Can employers do anything to prevent relationships at work?
While there is no law to prevent two people employed by the same company having a personal relationship, in some sectors higher ethical standards may be required due to regulatory requirements, custom and practice or safety concerns (in the police and fire services, for example). Consequently, some employers do refuse to engage any relatives of their existing workforce and if a relationship does arise in the workplace then one or both individuals must leave.
A more mainstream view is that personal relationships are irrelevant to the employer/employee relationship as long as the parties act professionally and do not allow domestic issues to spill over into the working environment.
Inevitably though, combining work with love often does lead to management problems. For example:
- A personal relationship could be a distraction from productivity not just for those involved but those working with the couple
- If established partners are in the same team and one is more senior than the other there could be a real or perceived risk of unfair advantage when it comes to appraisals, promotions or target setting. Even the perception of unfairness by other colleagues could adversely affect morale
- If there is a big difference in seniority between the couple the employer may worry about the confidentiality of its business information being breached
- If the relationship ends acrimoniously, will the employer have to help “pick up the pieces” and can working relations between the employees continue?
Should an employer have a “relationships at work” policy and if so, what should be in it?
The “love contract” and “fraternisation policy” have migrated from the USA in recent years so that it has become more common for employers in the UK to consider whether they need documentation in place to govern relationships between their staff.
The employer will be in a much weaker position when dealing with potential issues without any policy framework for guidance – without this how can employees know what is and is not expected of them and how can those charged with managing staff know what the appropriate response to a relationship at work should be?
Without any relevant policy or rules in place to cover the situation the occurrence of a workplace relationship is no reason to discipline or dismiss. Although inappropriate behaviour related to a relationship may justify invoking the disciplinary policy, this is going to offer the employer less flexibility than relying on a comprehensive “relationships at work policy”.
It is worth remembering that the Human Rights Act 1998 enshrines a legal right to respect for private and family life and any interference with this right needs to be proportionate. A blanket ban on relationships between colleagues is probably not appropriate in the majority of workplaces.
However, if an employer has thought carefully about the damage that may be caused to its business by personal relationships at work, and can articulate their reasons, then a policy that seeks to deal with these specific concerns should be put in place.
A more nuanced policy, which requires employees simply to disclose their relationships so that the employer can take pre-emptive steps to avoid potential conflicts of interest and business risks, is likely to be more appropriate than any outright ban. In addition, the policy may allow the employer to move an employee in a relationship with a colleague of different seniority to another team or role in order to avoid the appearance of bias.
As with any policy, there is always a risk that the way the policy is applied by the employer could lead to a claim for indirect sex discrimination. For example, could women be more affected by an employer’s power in the policy to move them to another team in order to avoid favouritism as they are more likely to be in junior roles?
In smaller organisations (whether there is a policy addressing relationships at work or not) the only feasible option may be for the employer to allow the partner’s reporting line to continue. However, putting in place the appropriate checks and balances to ensure that processes are transparent and fair, such as requiring two managers to oversee or be involved in all employee appraisals, pay reviews, disciplinaries, etc. should still be possible.
How can employers avoid litigation when dealing with personal relationships in the workplace?
It is important for an employer to be fair in its dealings with both people in a couple, as a difference in treatment could lead to an unfair dismissal and/or sex discrimination claim.
A recent case is a good example of how an employer can get it wrong: In CJD v Royal Bank of Scotland [2014 IRLR 25] the Scottish Court of Session upheld an employment tribunal’s decision that an employer had unfairly dismissed a male employee who had assaulted his girlfriend, a colleague with whom he was cohabiting.
Although he was convicted of a breach of the peace following an argument which turned physical, the male employee claimed he had reacted in self-defence. During the course of a disciplinary investigation by the employer he provided photographs taken shortly after the incident showing scratches to his face to support this claim. While the employer accepted he had acted in self-defence it still proceeded with the dismissal.
The Court said:
“It was difficult to see how the action of an employee, acting in self-defence… in a domestic situation could have been such as to reflect upon the employer-employee relationship.”
A particular danger point for employers is on the break-up of a relationship as there is a real risk that they could become vicariously liable for their employees’ emotional behaviour under the Protection from Harassment Act 1997 or the Equality Act 2010 (the “Act”).
An employer can be liable under the Act unless it has taken all reasonable steps to prevent the harassment of its employees. This is defined as, unwanted conduct of a sexual nature or conduct which violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. Having appropriate discrimination and harassment policies in place and ensuring all staff receive regular training on their operation can assist in showing the employer has discharged its duty.
Any relationships policy should be enforced consistently regardless of the sexual orientation of the couple involved. Any more or less favourable treatment of employees based on whether they are homosexual or heterosexual for example, would clearly be discriminatory on the grounds of sexual orientation.
Where work involves shifts or out of office commitments couples who have children together may face disadvantages due to childcare restrictions. Even if the parents have not asked formally for flexible working, employers should make reasonable accommodations to reflect the situation where they can. Failure to do so risks a sex discrimination claim if rigid or unreasonable requirements are imposed.
Practical tips
- Scrupulous impartiality by the employer is the best defence against complaints so always avoid taking sides and getting dragged into the personal
- Avoid knee-jerk reactions and stereotypical assumptions, never rely on unsubstantiated rumour and always investigate a matter properly before deciding whether or not there has in fact been any breach of workplace rules or policies and whether formal disciplinary action is appropriate
- Workers need to know what the employer considers acceptable behaviour in the workplace so the employer should ensure that disciplinary rules are detailed enough to set out expected standards of behaviour for those who are in relationships at work
- It is not enough to just have rules or introduce a “relationships at work policy.” These must be effectively communicated and ideally followed up with training
- Managers who are likely to be dealing with romantic issues between staff in the workplace need to be appropriately supported – an unfortunate comment or ill-considered reaction could lead to a discrimination or unfair dismissal claim against the employer
- If a relationship ends at work then it might be appropriate to offer those involved a reasonable period of compassionate leave away from work to enable emotions to cool
In larger businesses it may be feasible to offer a transfer to another team or role if a relationship begins. However, this should be handled sensitively and should be following consultation and with the consent of the individuals concerned.
Katy has over ten years experience as an employment lawyer in both external and internal client facing roles. Her experience encompasses pensions, share options and data protection. Katy’s work for external clients has been mainly advising large corporate employers. Her current role is to support the national employment team of over 35 lawyers and their clients.
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