Legal

Does love in the workplace mean heartache for employers?

13 Feb 2018 By Ben Power

As Valentine’s Day approaches, Ben Power outlines how far businesses can go in regulating personal relationships between staff

Given the amount of time we all spend in the workplace, it’s no surprise that many people meet their partners at work. With the lack of general legal restrictions on relationships in place, an office romance is no reason, of itself, to discipline an employee – although inappropriate behaviour linked to it may be. 

Why should businesses worry about personal relationships between staff?

Employers are likely to have various concerns about workplace relationships, such as whether:

  • a new relationship between colleagues could lead to jealousy and affect team morale; 
  • confidentiality is at risk if one person in the couple is aware of sensitive business information;
  • the relationship could be a distraction from productivity for those involved and those working with the couple; 
  • there is a negative perception (both internally and externally) about whether this is appropriate (particularly if there is a big difference in seniority between the couple);
  • there is a real or perceived risk of unfair advantage when it comes to appraisals or promotions or other employment activities; 
  • the relationship gives rise to a conflict of interest – in certain industries where the highest ethical standards are required, nepotism may be particularly frowned upon;
  • it may be difficult to continue working relations between the employees if the relationship ends; or
  • the employer may incur liability for legal claims itself as a result of the relationship. 

Will American-style ‘love contracts’ work here?  

A contractual term imposing a blanket ban on romantic relationships with colleagues is unlikely to be enforceable in the UK. Unlike in the US, the Human Rights Act 1998 enshrines a legal right to respect for private and family life and this restricts the extent to which employers can interfere with their employees’ private lives. An outright ban on personal relationships is unlikely to be considered proportionate (and therefore lawful) unless the employer can show a good business reason for it. 

Why should employers have a ‘relationships at work’ policy?

A ‘relationships at work’ policy can assist an employer by setting out the expected standards of behaviour in the event of a personal relationship arising, and providing a framework for managers in dealing with such situations. Staff need to understand what is and is not acceptable behaviour, otherwise it will be difficult to discipline anyone fairly.

Employers are also likely to be concerned about the risk of legal claims as a result of a workplace relationship or its break-up. Having a relationships at work policy that is properly communicated to staff should provide some defence against vicarious liability for potential sex discrimination claims.

Businesses need to think carefully about the damage that could be caused by relationships at work and put in place a policy that deals with these specific concerns.

An initial statement explaining why the employer has introduced the policy is helpful to show that it has thought about the possible damage to its business and weighed this against any detrimental effect on individuals. 

What should the policy contain?

The policy needs to define what is meant by ‘personal relationship’ in a work context. This is a sensitive area, but it is crucial to be clear. While an employer will generally wish to use a broad definition to prevent ‘loopholes’ arising, it is questionable that it would wish to be informed about every stolen kiss at the Christmas party.

The policy could include guidelines for managers when dealing with employees in personal relationships, such as reminders about confidentiality and data protection. 

Employers need to decide whether they can justify having an outright ban on relationships in the policy or whether they will take a more nuanced stance and simply require employees to disclose them. This will enable employers to take pre-emptive steps to avoid potential conflicts of interest and risks to the business and is likely to be a more appropriate approach.

Once informed about a relationship, an employer may wish to reserve the power to move one of the couple to a different reporting line. However, the discrimination risk should always be considered, as automatically assuming that the more junior person will be moved could be indirectly discriminatory on the grounds of sex in organisations where there are more women in junior roles.

While sensitivity is required in dealing with personal relationships, scrupulous impartiality from the employer is the best defence against complaints and dealing even-handedly with both partners is crucial. With a robust policy in place to ensure this, employers can look forward to many more happy Valentine’s days.

Ben Power is managing partner at Springhouse Solicitors

Human Resources Business Partner | Citizen Services

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