As we spend a great deal of time at work, romantic relationships between colleagues are unsurprising. Can employers impose an absolute ban? It could raise questions under Article 8 of the Human Rights Act 1998, the right to respect for private and family life, as a ban would suggest that either one or both employees must move if a romantic relationship developed.
The recent gender pay gap reporting regime shows senior men far outnumber senior women within the workplace. It may be that companies wishing to retain the more business-critical person are more likely to require a woman to move. This opens a potential indirect discrimination issue.
There are lots of practical problems too. What is a romantic relationship? Who would have a duty to disclose? What would they have to disclose and when? Does there need to be an element of durability? How is durability measured? Is failure to disclose, for whatever reason, a disciplinary offence? Ultimately, an absolute ban on romantic relationships in the office is likely to create far more problems than it solves.
There are often few issues for an employer dealing with a happy, overt and established romantic relationship between employees. Employment policies can address the general requirements for behaving professionally and avoiding a conflict of interest in sensitive matters such as pay reviews or appraisals.
Far greater issues arise where either a romantic interest has been rebuffed or a relationship has hit the rocks. Should a breakup occur, workplace disputes should be dealt with in the same way as any other falling out between colleagues. The grievance procedure can be used. Depending on the circumstances, mediation may be helpful. A one-size solution will not fit all circumstances and open communication between the business and both parties should be encouraged.
The definition of harassment as contained within the Equality Act 2010 includes unwanted conduct of a sexual nature or conduct that has the purpose or effect of violating a colleague’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for a colleague.
Harassment can occur without intention on the ‘perpetrator’s’ part. ‘Banter’ is never an excuse for harassment. Harassment can start as inoffensive banter but can escalate very quickly. This is an area that is covered by most employers’ existing equality policies but can be difficult for some employees to navigate.
Some companies have tried to introduce an informal red flag comment such as a recognised ‘that’s not cool’ comment. This should act as a prompt for the recipient to stop and examine his or her behaviour. It is also worth flagging up that the majority of sexual harassment examples cited recently in the media (such as the Weinstein allegations) are easily identifiable as sexual harassment by any reasonable person.
No employee should suffer any negative consequences or curtailment of opportunity for rebuffing a romantic advance or drawing a complaint or awkward situation to the attention of their employer. This would be unlawful victimisation. None of this is novel or surprising; what is new is the increased willingness of employees to call out unacceptable behaviour.
So what is the answer for employers? Embrace the positive change. Encourage staff to call out inappropriate behaviour. Use the media coverage to raise awareness. Larger companies are introducing external reporting channels where employees feel that no other option exists. Ensure that comprehensive policies exist. Use engaging and thought-provoking training and genuine buy-in from the top down to drive a positive culture in the workplace. The results should provide benefits for all.
Louise Skehan is an employment partner at McCarthy Denning