As the nation has just participated in the annual lovefest that is Valentine's Day, spare a thought for employers having to deal with the fall out from the increasingly common office romance.
On average we are spending more of our lives at work so it is unsurprising that more people are having romantic relationships with work colleagues or working alongside their partners in the workplace and this situation presents various legal concerns for employers.
There may be examples of romantic relationships leading to a positive impact on the working environment by increasing communication and teamwork. However, combining work with love can obviously lead to various management problems resulting from the collision between the private and public spheres.
For example, will relationships be a distraction from productivity not just for those involved but those working with the couple? Could a new relationship between colleagues lead to jealousies and affect the morale of their team? If there is a big difference in seniority between the couple is there a concern about the perception of others within and outside the organisation about whether this is appropriate? If partners are in the same team is there a real or perceived risk of unfair advantage when it comes to appraisals or promotions? Could the relationship give rise to a conflict of interest? In certain industries where the highest ethical standards are required, nepotism may be particularly frowned upon. How can the employer be sure that the individuals will maintain confidentiality if they are aware of business sensitive information?
When relationships formed between colleagues end there are particular issues that could be of concern to employers, including the need to continue working relations between the employees even though the personal relationship has ended.
The risks of claims for sexual discrimination, harassment and/or victimisation as well as possibly constructive unfair dismissal, for example, if the employer doesn't manage workplace gossip appropriately, are ever present in such situations.
Is Cupid redundant?
Without any relevant policy or rules in place to cover the situation the mere fact of a workplace relationship is no reason to discipline or dismiss the employees. It may be, however, that inappropriate behaviour related to the relationship is. The key is that employees must know and understand what level of behaviour is expected of them.
While employers may consider that the easiest option is simply to have a blanket ban on relationships between colleagues this is probably not appropriate in the majority of workplaces. If such a blunt rule were to be challenged by an employee it is worth remembering that the Human Rights Act 1998 enshrines a legal right to respect for private and family life. While this right is subject to interference by public authorities in certain circumstances, an outright ban is unlikely to be considered proportionate unless the employer can show a really good business reason for such a policy.
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 risks to the business for example, by changing of reporting lines, may be more appropriate.
If an employer has thought carefully about the damage that may be caused to its business by relationships at work and it can articulate good reasons then a policy which seeks to deal just with these concerns should be put in place.
For example, if the concern is the appearance of bias or favouritism then a policy which allows an employer to move employees to different roles where there is a relationship between employees of different seniority in the same team may be workable. Even then, however, consider the sex discrimination risk, would women be more affected by such a policy as they are more likely to be in junior roles?
It hopefully goes without saying that any 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.
When the parties let the personal intrude and behave emotionally, for example, on the break-up of a relationship, there is a risk of legal liability for the employer. An employer could be vicariously liable for its employees' behaviour under the Protection from Harassment Act 1997 or under the Equality Act 2010.
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 amounts to unlawful harassment. An employer can be liable unless they have taken all reasonable steps to prevent the harassment.
Unfairly disciplining an employee because of their relationship or taking action against them based purely on the grounds of unsubstantiated rumour could give the employee cause to resign and claim constructive dismissal.
Practical steps for employers
- Always aim to handle relationship issues sensitively and fairly but don't get dragged into the personal - it is not relevant to the employer/employee relationship and scrupulous impartiality is the best defence against complaints.
- Make sure employees know what is and is not acceptable behaviour. It is not enough to just write a policy, this needs to be effectively communicated and ideally followed up with training.
- Make sure managers are appropriately supported in handling romantic issues between employees in the workplace - an unfortunate comment could lead to a discrimination claim.
- If a relationship ends at work it might be appropriate for the employer to offer an employee a reasonable period of compassionate leave away from work or to consider if transfer to another team or role is feasible.
- Ensure that your disciplinary rules are detailed enough to set out expected standards of behaviour for those who are in relationships at work.
- It is important for an employer to be fair in its dealings with both people in a couple as a difference in treatment could found a sex discrimination claim.
- Avoid knee jerk reactions and always investigate a matter properly before deciding whether or not to take formal disciplinary action.
Relationships between colleagues are increasingly a fact of life and if handled professionally by all parties should not present a problem - happy valentine's day!