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Monday, 4 April 2016

Member Blog: Workplace Relationships - What happens if things go wrong?

By Zee Hussain - Partner, Simpson Millar Solicitors LLP

Office relationships often present employers with a headache. It is a sensitive area, and requires the employer to strike a careful balance between respecting the personal affairs of the individuals concerned, and managing any potential issues from a business perspective.

1. Why should employers care about workplace romances?

The mere fact that two employees have a romantic relationship is not an issue for employers – but the potential consequences in the workplace can be a valid concern. One of the employees might be in a management position over the other, creating conflicts of interest. The couple might engage in inappropriate behaviour in the office. And, if the relationship breaks down acrimoniously, it’s possible that the employer might face a claim of sexual harassment by the aggrieved party. Sensible employers will seek to guard against these eventualities.

2. Does a romantic relationship exist?

There is no legal obligation for employees to inform their employer of their office romance; though conscientious employees may decide to do so, many couples will want to keep the fact of the relationship private. There’s nothing to stop employers asking about a suspected relationship, but – in the interests of good workforce relations – this should be done sensitively. For example, employers should avoid quizzing individuals collectively, or being intrusive about the details of the relationship. Overall, the employer will have to take a view on whether or not it is worth raising the subject, bearing in mind the particular circumstances and facts.

3. What action, if any, can the employer take?
Short of introducing a policy on workplace relationships, or requiring the employees to sign a ‘love contract’ (see below), employers are entitled to point out the standard of conduct they expect from their employees. It would be acceptable to remind employees that any personal relationship should not impact on their professional conduct, such as on business trips. For example, the employer is entitled to ask employees to refrain from inappropriate conduct in the workplace.

Employers should be wary of taking any form of disciplinary action, unless the employees’ behaviour essentially amounts to misconduct or a breach of contract. If one employee in a couple manages the other, it may be possible for the employer to change reporting lines, or even job functions, to avoid the conflict of interest – though this must be done carefully and with due process.

4. Can an employer ban workplace relationships?

An outright ban on workplace relationships is extremely likely to be seen by the workforce as draconian and excessive. Even if a ban were imposed, and an employee acted in breach of it, the employer may well be acting unreasonably in taking disciplinary action.

5. How about a policy or ‘love contract’?

‘Love contracts’ – agreements where the couple agrees contractually with their employer that the relationship is consensual – are often used in the US, as a guard against sexual harassment claims. They are far less common in the UK, due to the difference in harassment laws. Employers are, however, well advised to introduce a sensible policy on workplace relationships. This should spell out what is expected of such employees. Where an employee breaches the policy, the employer is more likely to be able demonstrate that they have acted reasonably in taking action.

6. What happens if things go wrong?

Where a break-up impacts detrimentally on the workplace environment, employers are entitled to respond – though they should so proportionately, and only after giving due consideration to all available options. Rarely will an employer be able to fairly dismiss an employee following a break-up, unless there are other factors involved – for example, where an employee commits misconduct as a consequence. Where dismissal is an option, this should only follow an appropriate investigation or review process. Employers should always consider practical alternatives, such as redeployment, or negotiating a settlement for departure.