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Relationships at work
Wednesday, 30 July 2008 10:47

by David Greenhalgh, a partner in London lawyers, H2O Law LLP, specialising in employment law and reputation management

Unbeknown to me, two of my staff have secretly been seeing each other for about six months. They got engaged today (Valentine’s Day) and have now made their relationship public. I am concerned about the effect their relationship might have at work, particularly because Ted is Marie’s line manager. What options are available to me if their relationship is adversely affecting their work, or having an adverse impact on the office generally?

Your concerns may be justified, as intra-office relationships can pose real problems for employers, especially when relationships breakdown. Given the fact that employees in the UK work the longest hours in Europe, it comes as little surprise that 60% of UK workers have enjoyed a workplace dalliance at some point (source: Monster UK). You are right to consider the potential effects of work relationships, particularly across power divides, which can often lead to accusations of favouritism and unprofessional behaviour. Messy break ups can also result in claims for sexual harassment or bullying against you because as employer you are responsible for actions of your staff in the workplace (vicarious liability).

You need to be careful in drawing the line between work and play. Any high handed bans on an intra-office relationship could lead to dishonesty by employees and force out talented but disgruntled employees. An over-zealous employer which sacks an employee for having an affair at work would be likely to find itself defending a claim for unfair dismissal or sex discrimination (or both). Tribunals are unlikely to be unsympathetic to an employer who seems to be meddling unnecessarily in their employees’ private lives (especially as one of the rights protected by the Human Rights Act is the right of the individual to a private life).

So what are your options?  Firstly, remember that there is evidence to suggest that employees in relationships actually perform better at work so there is a potential positive benefit to you as employer.

That said, in the case of Ted and Marie, you need to be sure that Ted (as Marie’s line manager) treats Marie in exactly the same way as every other person he manages to avoid complaints of unfair treatment by other employees who Ted manages. In California, a US court recently ruled that employees could sue their manager/employer for promoting a subordinate with whom he was having an affair and overlooked other employees as a result.

Such a precedent is yet to be set in the UK, but you could consider introducing a disclosure/relationship policy under which employees are obliged to disclose the existence of an inter-office relationship.  This would ensure that the general professionalism of your business is not compromised, it should limit possible conflicts of interest between an employee’s duty to the company and their personal obligations in the relationship and it will allow the company to be alert to the exercise of any favouritism by one of the individuals to the other in the workplace.

In addition, the notification by the parties of their consensual relationship should give some protection to your business should the relationship turn sour with one of the parties bringing a claim against the company for harassment (for the actions of its employee).

The policy can set out expected appropriate office behaviour, and encourage employees to keep their private lives private and not bring romantic issues into the office.

Ensure your harassment and bullying policies and disciplinary policies deal specifically with inappropriate sexual behaviour (both in and outside of the office), or any behaviour which may bring your company into disrepute. Introduce clauses into these policies which make it clear that the rules also apply to intra-office affairs.

You might also consider transferring one of the employees to a different department (with their written consent) if your business can accommodate it. An enlightened approach would be to transfer Ted, as the more senior employee.

Furthermore, you need to be aware of what might happen should Ted and Marie break up. The hurt and emotion involved could result in unprofessional behaviour, moodiness and tension that could adversely affect their work, and impact upon other employees and the office environment generally. Attempts to move one of the pair after they split up, i.e. to another team or department,  might give either party cause to bring claims against you for unfair dismissal and/or sex discrimination (if they can prove that the only reason that were transferred (and treated less favourably) was on the ground of their sex).
 
American companies deal with such problems using ‘love contracts’. The idea is that the couple sign an agreement to say that their relationship is consensual and agree to clauses which set out appropriate conduct. In theory, the employer is then protected against becoming vicariously liable for any sexual harassment claims brought by the couple involving the conduct of the other. Although the concept of disclosure/relationship policies is catching on in the UK, it is unlikely that USA style love contracts will be enforceable in our tribunals as the law here prevents employees from contracting out of their protection under ant-discrimination legislation.

  • If you have any queries about any of the matters raised in this article please contact David Greenhalgh at H2O Law LLP on 020 7405 4700.




Whilst H2O Law LLP makes every attempt to ensure the accuracy and reliability of the information contained in this article the information should not be relied upon as a substitute for formal legal advice.  H2O Law LLP, its employees and agents will not be responsible for any loss, howsoever arising, from the use of or reliance upon this information.

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