With Valentine’s Day making February the month for romance, and various surveys confirming that many employees confess to having formed a romantic relationship at work, this month’s Q&A takes a look at some of the potential risks to employers when romance blossoms amongst employees and the steps that can be taken to address these.
Q: Why should an employer be concerned about its employees forming romantic relationships in the workplace?
A: Romantic relationships between employees in the same organisation can expose the employer to a number of legal risks. These are most likely to arise when one employee is pursuing another to start a relationship or, even more so, when the relationship breaks down. The most obvious legal risks are as follows:
- Sexual harassment - This occurs where one employee engages in unwanted conduct of a sexual nature which has the purpose or effect either of violating another employee’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for that employee. The sort of behaviour which might be classified as sexual harassment includes sending emails or making jokes or remarks of a sexual nature, or inappropriate touching. The only basis on which an employer can defend a claim of sexual harassment is to show that it took all reasonable steps to prevent the harassment from occurring.
- Sex discrimination – This claim often arises where, following the break-up of a relationship or as a result of an employer’s policy on workplace relationships, the junior employee in the relationship (usually a woman) is dismissed or finds themselves moved to a different department from their male partner, while the male partner retains their original position.
- Victimisation – This may arise when, as a result of an employee raising a grievance of sexual harassment relating to a colleague’s behaviour, the employer seeks to move the complaining employee to a new role rather than take action against the perpetrator of the harassment.
Q: Can an employer place a complete ban on relationships in the workplace?
A: Not only is such a rule likely to be unworkable in practice (not least from the perspective of enforcement) there is also an argument that a ban would be an interference with an individual’s right to respect for their private and family life under the Human Rights Act. Therefore while there may be some specific situations where - due to serious issues of conflicts of interest arising or potential breach of legal rules - a ban is appropriate, a blanket ban across the workforce is likely to be a futile way of seeking to manage workplace relationships.
Q: Can an employer insist upon its employees disclosing workplace relationships?
A: While an employer can potentially ask its employees to disclose such relationships, again a blanket request that this is done by all employees may be challenged on the basis that it represents an infringement of their right to respect for their private and family life under the Human Rights Act. There is also the question of the penalty that would be imposed upon any employee who chose not to disclose this information. If employers feel that it is important that workplace relationships are disclosed, it is usually only in situations that present risks to the business (e.g. the manager/team member type of relationship) which are most likely to give rise to the sorts of practical and legal risks referred to above. It would therefore be preferable, and put the employer in a better position in terms of any Human Rights Act challenge, if the employer identified particular risk situations to which a disclosure obligation attaches.
Q: What else can an employer do to manage the risks arising from workplace relationships?
A: All employers wishing to try and minimise the sort of risks referred to above should consider introducing a Workplace Relationship Policy. Areas to consider covering in such a policy would be:
- Identifying the roles that would require disclosure of a relationship with another employee;
- The right to move one or both employees in the event of a possible conflict of interest or other workplace issue arising as a result of a relationship with a colleague;
- General workplace rules applying to all employees – such as a prohibition on intimate behaviour while at work;
- Duty to disclose a relationship with a customer or colleague if it risks placing the employee in a conflict of interest or a threat to the employer’s business;
- A grievance policy under which employees adversely affected by another employee’s conduct can make a complaint; and
- The penalty for breaching the policy.
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