Love actually

Workplace romances are inevitable considering the amount of time spent at work. But it is important that employers have a formalised policy and processes in place to ensure such liaisons do not end in tears.

t is not surprising that employers have to deal with romantic relationships in the workplace, as such relationships are extremely common. Research conducted by Human and Legal Resources early this year showed that more than 60 per cent of UK employees have had a relationship with a colleague.

The reasons for this are not difficult to determine. As several survey respondents  said, we spend the majority of our time at work; we work in close-knit teams with like-minded people. No wonder, then, that the camaraderie and teamwork that employers encourage among employees so often blossoms into something deeper.

However, employees often shy away from making their personal relationships common knowledge for fear of the repercussions this may have. Some employers feel there is cause for concern when the personal and the professional cross over.

For example, other employees may perceive bias and favouritism if a line manager is having a relationship with his/her subordinate. This is borne out by our research: one in five employees said that a romance in their workplace had resulted in favouritism towards one of the parties involved, while 13 per cent of those who had been romantically involved with a more senior person said the relationship had improved their career progress.

Romantic relationships at work can also affect team dynamics. Half of the employees surveyed admitted that the relationship had an impact on their work, with one in 10 moving teams or departments and a similar proportion leaving the organisation of their own accord as a result.

Meanwhile, colleagues reported that tensions were caused within their team when the individuals involved were not getting on.

Ignorance of company policy is widespread, with more than a third of employees admitting to being unsure about their workplace’s policy on relationships and a similar number saying they believe there is no set policy. Only 16 per cent of employees said they knew exactly what their company policy was.

Since romance at work is commonplace, one would expect employers to deal with it in a sensible and adult fashion. Yet many react in one of two ways: ignore it entirely and hope it will go away (therefore not having a defined policy or process in place), or write draconian policies in a ruthless attempt to suppress any burgeoning affections among their workforce.

It is important, therefore, for organisations to recognise and accept that relationships at work are normal. According to the Human and Legal Resources’ research, six in 10 employees feel that workplace relationships are “a perfectly normal part of working life”. However, it is understood that employers need to identify where their business and credibility must be protected, especially in areas such as financial exposure, breach of confidence, conflict of interest, team issues or professional distance requirements.

To strike a balance between burying their head in the sand and being intrusive, organisations need to create a culture in which employees feel they can be open and honest about their relationships. To do this, they should develop and communicate a policy that accepts that these things will happen and encourages openness. Once an employer is aware of a relationship, they can then consider any issues it may cause within the working environment, carrying out a risk assessment to identify its potential impact.

For example, if the relationship involves a manager and his/her subordinate, the organisation may consider allocating an alternative manager for the purpose of processing expense claims and conducting the employee’s performance review.  Employers should take a consultative approach and invite the employees concerned to discuss and agree the proposed changes.

However, before taking any action, employers need to take the legal issues into consideration. In a recent case, Chief Constable of Bedfordshire Constabulary v Graham [2002] IRCR 239, EAT, the applicant, a female police officer who was married to a chief superintendent in the same force, had her appointment to the post of area inspector withdrawn because it would have made her husband her divisional commander. The employer justified this by deciding that, should there be any criminal proceedings involving both her and her husband, she would not be compelling or competent if she had to be a witness against her husband. The employer also foresaw problems if her husband had to deal with any possible complaints by officers under her supervision about her performance.

The applicant argued that, to deal with any such complaints a different manager could be appointed, and in any event it was highly unlikely that her husband would ever have to deal directly with her in this regard.

The Tribunal found that the employer had directly and indirectly discriminated against the applicant on the grounds of her marital status. The employer’s concerns were speculative and many other forces employed married couples. The Tribunal ruled that she had been treated less favourably than a non-married female applicant.

With this case in mind, employers must not assume that married partners should not be permitted to work together. Employers must treat all employees fairly regardless of their marital status, ensuring that they have clear, objective justifications for making any changes to working arrangements.

Recent regulations (The Employment Equality [Sexual Orientation] Regulations 2003) prohibiting discrimination on the grounds of sexual orientation have led employers to open their minds to individuals being honest about relationships they are having with members of the same sex. In accordance with the regulations, discrimination against employees on the grounds of their sexual orientation, whether the orientation is towards members of the same sex or opposite sex, is prohibited. As a result, employees should be less fearful of being open about their sexuality and any relationships they are having in the workplace. Employers must take care not to discriminate against individuals on these grounds.

In addition, employers need to give consideration to the Human Rights Act, which came into force in October 2000. The Act introduced, for the first time, a set of legal principles that enshrine basic human rights. In particular, Article 8, “the right to respect for private and family life” and Article 10, “freedom of expression”, provide individuals with an argument that an employer’s restrictions on relationships at work are unreasonable, infringing their basic human rights. Arguably, individuals who are forced to disclose any aspect of their personal life, such as information relating to their personal relationships, could also claim this to be a breach of these rights. It is therefore imperative that employers create a working environment that encourages employees to disclose such information of their own free will.

The Human Rights Act is only directly enforceable on employers in the public sector. However, all employers need to be aware of this legislation as tribunals and courts are required to observe and be guided by its principles.

Employers rely on the professional integrity of individuals who are in a relationship to continue to provide services and/or work in a competent and businesslike manner, to no detriment to the organisation or employees. If the relationship causes an ethical breach or has a detrimental effect on the organisation, more action may be required. Relationships involving an individual who provides services to the organisation on a third-party basis, such as a supplier or consultant, or in which the individual is a professional adviser to a third party, such as a doctor and patient, could give cause for concern.

In these cases, employers will need to make it clear that these types of relationships are discouraged as it may have an impact on the professional integrity of the organisation and/or the individuals concerned. In certain circumstances it may be appropriate for employers to move individuals to different departments or locations, or, if the breach is fundamental, to dismiss the employee.

Alongside a personal relationships policy, organisations should consider clarifying their stance on third-party dealings. To avoid any conflict of interest, allegation of bribery or compromise, we recommend a business conduct policy detailing the organisation’s requirements where an employee has to work with an outside party.

While it is important that organisations embrace an open approach to personal relationships, poor or inadequate performance or unacceptable behaviour resulting from such a relationship should not be tolerated. Organisations should have a clear code of conduct defining the standards that are required. Employees must be made aware of the code of conduct and that any breach of the code will result in appropriate action (disciplinary action up to and including dismissal) being taken.

Taking into consideration the outcome of our survey, recent legislation and case law, it is important that employers follow a formalised policy and process.

Ros Gumbley is a consultant at Human & Legal Resources.

Relating legislation and case law

In October 2001, the Sex Discrimination Act (SDA) 1975 was amended to provide for direct or indirect discrimination against married persons in the employment field whereby the person is treated less favourably on the grounds of his or her marital status than an unmarried person of the same sex. In Chief Constable of Bedfordshire Constabulary v Graham [2002] IRCR 239, EAT, it was found that the applicant had been less favourably treated than a non-married female applicant.

The Employment Equality (Sexual Orientation) Regulations 2003 introduced in December last year prohibit discrimination on the grounds of sexual orientation in relation to employment and training. Employers must be careful that they do not discriminate against individuals where they have disclosed details regarding their sexual orientation.

In 2000, the Human Rights Act introduced legal principles that enshrine basic human rights, in particular Article 8 ‘the right to respect for private and family life’ and Article 8 ‘freedom of expression’, provide individuals with an argument that an employer’s restrictions on relationships at work are unreasonable and a restriction on their basic fundamental rights.

Tips for employers

Accept that relationships will occur in the workplace and encourage employees to come forward and be open about it. Prepare a clear policy and process letting employees know what the company stance is and making sure that the policy is communicated throughout the organisation. Managers may need further advice and guidance on how to meet the organisation’s requirements.

Identify where your organisation may be exposed to potential risks in relation to financial exposure, breach of confidence, conflict of interest, team issues or where there may be a professional distance requirement.

Be aware of any discrimination issues, ensuring that you can justify any actions and steps you may need to take.

Agree any necessary changes with the employee in a consultative manner and confirm in writing.

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