Romantic workplace relationships can raise sensitive issues for employers. On the one hand the private lives of employees should be respected. On the other, the interests of the employer may be seriously affected by complications arising in a relationship.
Most employees regard their workplaces as a social, as well as a business, environment and regard many of their colleagues as personal friends. Sometimes it goes further than that with employees entering into romantic relationships, and this is when problems can occur. This is not to say that all romantic workplace relationships become an issue, many do not impact on the working environment – however, they can sometimes cause difficulties.
In some cases, other employees will object to the relationship; for example, where a manager or supervisor is in a relationship with a junior employee, there may be accusations of favouritism, which could lead to resentment. Team relationships can quickly deteriorate and productivity can be damaged, and so the business will suffer.
Often worse is the fallout if the relationship ends. Two people in a team who do not want to speak to each other after their relationship breaks down can cause considerable problems for the organisation. The problem can escalate to create some more serious concerns if one party wants the relationship to continue while the other does not, which can lead to claims of sexual harassment.
Employers faced with such a situation may have to decide to dismiss one of the employees if it becomes apparent they can no longer work together. However, this will inevitably lead to the risk of claims in an employment tribunal in relation to unfair dismissal and potentially discrimination.
Risks and mitigation of risks
In Kaufmann & Co Solicitors v Schofield (2002), where a claim of sex discrimination was upheld, the claimant had been deceived into thinking that the person she had been romantically involved with had left the firm, resulting in her redundancy, while in fact he was kept out of sight continuing his employment with the firm working from home.
Claims of sex discrimination are likely to fail if it is found that the dismissal had occurred because of the breakdown of the relationship and had nothing to do with the employee's gender. There may be evidence that the end of a relationship has resulted in a breakdown in the working relationship.
Which employee should be dismissed or moved to another department or location can be the most difficult issue. Clearly there should be no gender basis for the decision. In most cases there will be practical considerations that need to be taken into account as to how the business will operate going forward. However, where there has been inappropriate conduct by one employee to another, the victim of the sex discrimination should not be the one dismissed (or moved).
Recently, the issue of whether a dismissal following a break up might amount to discrimination on the grounds of the protected characteristic of marriage was considered in Graham Ellis v 1) Ms K Bacon 2) Advanced Fire Solutions Ltd (In Administration).
Ms Bacon had married the managing director and majority shareholder of Advanced Fire Solutions after joining as a bookkeeper. She later became a director of the company.
Following her decision that she wished to separate from her husband she was suspended, became the subject of false allegations and was dismissed.
Her claim that she had been subject to marriage discrimination ultimately failed. The key issue was whether she had been treated unfavourably because she was married to the managing director. The appropriate question to ask was whether an unmarried woman whose circumstances were otherwise the same as hers, including being in a close relationship with Mr Bacon, would have been treated differently. The fact that they were married was therefore irrelevant; the same would have happened to her even if they weren’t married but were instead in a relationship with one another.
As these cases show, it is important to have in place an employment policy governing relationships at work. The aim should be to ensure that staff don't commit – and are not open to – acts of:
abuse of authority; or
conflict of interest.
The policy should clarify the behaviour you expect from employees; for example, that the relationship shouldn't affect their work; that there should be no favouritism or preferential treatment, particularly where one employee is more senior than the other; that the relationship has to be declared; and that one party may have to move roles if there is a conflict or potential issue with the couple continuing to work closely together.
Some companies go so far as to specify in employment contracts that employees can't form an intimate relationship with someone they work with, although this is probably unnecessary in most workplaces.
Helen Burgess is an employment partner at Gateley Legal