Legal implications of office romances

Love will be all around this Valentine’s Day, but how far should employers go in controlling simmering passions in the office?

Q One of my managers is having an affair with a junior member of his team. This is causing resentment among other employees. Can we move her to another team?

A Investigate the situation to determine whether there is a problem and, if so, the best way to deal with it. Speak to the employees concerned informally, explain your concerns and emphasise the importance of maintaining professional behaviour in the office.

If the relationship does cause problems, there may be steps you can take that do not involve transferring either employee. For example, if the manager has responsibility for the junior employee’s appraisal and there is a concern about favouritism, could another manager carry it out? Any such options should be discussed with the employee and agreed in advance.

If a satisfactory solution cannot be found, it may be appropriate to transfer one of the employees concerned, either temporarily or permanently. However, be careful when considering which employee to transfer, and ensure that you have objective reasons for choosing to move one and not the other. If you simply transfer the more junior employee, this could result in a claim for sex or age discrimination. If the contract of employment does not allow you to transfer the employee, you will need their consent.

Q After a recent team meeting in the pub, two employees were discovered in a compromising position in the boardroom. Can we dismiss them?

A You have a right to expect certain standards of behaviour in the workplace, and this almost certainly falls below those standards. The incident should be treated as misconduct, but you should not take any action without first investigating further and giving the employees the opportunity to explain themselves.

Whether a warning or dismissal is an appropriate sanction will depend on the circumstances, but to protect yourself against tribunal claims, you should follow a proper procedure first and consider all the options. Make sure you treat both employees the same, however, as inconsistent treatment may lead to discrimination claims.

Q An employee has complained about a colleague making unwanted advances towards her at departmental Friday night drinks. These drinks took place off work premises. Do we have to get involved?

A Yes. As an employer, you could be vicariously liable for sexual harassment – even if the unwanted attention takes place outside working hours and off the premises – if there is a sufficient connection with work, as is the case of a work social event.

The complaints should be promptly and thoroughly investigated. If the complaints are upheld, a disciplinary sanction up to and including dismissal may be appropriate.

Make clear to all employees that unwanted attention may give rise to harassment claims.

Q Should we just ban workplace relationships?

A In practice, a ban is likely to be unsuccessful, and may in fact be counterproductive, as it will lead to more secrecy about office liaisons. This could cause problems if harassment claims are brought at a later date. A relationship ban may also be in breach of the right to privacy under the Human Rights Act 1998, although this has not yet been tested.

A more effective option is to have procedures in place to deal with problems if they arise, and clear guidelines for staff involved in office relationships about the standards of behaviour expected.

Before implementing a procedure, you should identify where the organisation may be exposed to potential risks, such as breach of confidence, conflict of interest or supervisory issues. Managers should be provided with guidance and training on how to implement and monitor the policy.

Q Can we at least require employees to tell us if they begin a workplace relationship?

A It has become more common in recent years for employers to require staff to notify their manager or HR department if they become involved with a colleague, or even to require employees to enter into a so-called ‘love contract’, where both sign an agreement stating that the relationship is consensual, and that they understand the sexual harassment policy.

The difficulty with these types of measures is that they are extremely difficult to apply and enforce. For example, at what stage do you require the disclosure of the relationship? Also, these measures do not protect you against tribunal claims. If an employee brings a claim of harassment as a result of a workplace relationship that has gone wrong, it will not assist the employer to argue that the employee failed to disclose the relationship.

By Sandra Wallace, partner and head of equality and diversity, DLA Piper

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