As St Valentine’s Day looms ever closer, we look at the potential pitfalls of going gooey-eyed over a colleague. So what’s wrong with workplace romance?

Quite a few of us meet our partners at work, but you don’t need to be a killjoy to realise that workplace relationships can get us into trouble. Even if things go smoothly, undisclosed relationships can give rise to conflicts of interest and office gossip. If the relationship is out in the open, there is always the risk of blurring boundaries, which could lead to allegations of poor performance or misconduct.

When it all goes wrong

When things go wrong, at best it becomes difficult for former lovers to continue to have a professional relationship at work, and at worst, it can lead to mutual recriminations and allegations of harassment for which the employer may be liable. The stereotypical example is when a male employee has an affair with a more junior female employee and then abuses his position when it ends: a pattern of behaviour that dates back to a less enlightened era, but, judging by the law reports, is still with us in some measure.

What about a complete ban?

There are exceptions, but the consensus is that a complete ban is unworkable. Clearly, different considerations apply when the relationship crosses the professional/client divide – for example, teachers and pupils, or doctors and patients – in which case there are obvious legal reasons why employers and professional organisations need to enforce very strict guidelines. But in a standard workplace setting, it seems impractical to make such a ban stick, even if it were desirable.

Do ‘love contracts’ work?

One solution that has crossed the Atlantic, albeit to a mixed reception in the UK, is to impose an obligation on all workers to tell their employer if they form an intimate relationship with a colleague. If a relationship develops, those involved are expected to sign a contract confirming that the relationship is consensual and that neither will bring a claim for sexual harassment against the other if the relationship ends.

Q I think I may be falling in love with a colleague. What should I avoid? A Without straying into the realm of psycho-sexual counselling, here are a few pointers – from a strictly employment perspective: Keep communications and behaviour in the workplace professional. Resist the temptation to bring your home life to work, even if you share a workplace with your partner If possible, avoid a relationship with someone who reports to you, or to whom you report. If you think there may be a conflict of interest, consider disclosing the relationship Make sure you comply with any electronic communications policy, and bear in mind that communications with your partner may be monitored or intercepted by your employer for legitimate reasons Don’t forget about confidentiality. You may be party to work-related information that you must not share, even with your partner Consider how your workplace dealings with your partner may be construed by other colleagues Have a plan for how to deal with what happens if the relationship breaks down. If you work closely together, there is a risk that one or both of you may have to change jobs or resign.

This sounds fine in theory. But in reality it is impossible to contract out of your rights under the Sex Discrimination Act, or any other discrimination legislation. A ‘love contract’ will not stop a claim being brought, though it may help an employer defend such a claim.

And if an employer wants to discipline an employee for failing to disclose a relationship, or failure to sign a love contract – the only way of giving such a policy teeth – then the Human Rights Act comes into play, namely Article 8, which confers the right to respect for family and private life, subject to limited qualifications. Although the precise legal position depends on whether the employer is in the public or private sector, if disciplinary action led to an employment tribunal claim, the employer would probably need to show that the interference with the worker’s private life involved was proportionate to the risk it was seeking to address. That may not be an easy task.

What other solutions are there?

It is arguable that the fairest solution is to avoid treating intimate workplace relationships as a special case, but to assess the risks they pose dispassionately, like any other workplace risk. For example, it may be appropriate to look at the risk of conflicts of interest in the organisation as a whole, and to address them in that context. That could include an obligation to disclose where a particularly high risk was identified, perhaps in conjunction with advice to managers to avoid affairs with their subordinates. Beware of a policy that could involve indirect sex discrimination – for example, by assuming that it is the more junior member of staff who should move jobs or resign if a relationship starts, or ends badly.

Harassment policy

A similar approach could be taken to the organisation’s harassment policy. If claims arising from relationship breakdowns are seen as likely, appropriate guidance and sanctions could be built into the policy and addressed in workplace training. In this context, it is important to realise that even if the accusations are directed at the ex-lover, if the complaints arise from workplace behaviour, the employer will still be liable under the sex discrimination legislation unless it took “reasonably practicable steps” to prevent the harassment occurring.

E-mail at your peril

A third area to look at is the electronic communications policy. A well-written policy will address excessive use of e-mails, the internet and social networking software at work. It will also look at the content of electronic communications to make sure they do not cause offence. This general guidance can be checked to make sure it is wide enough to cover the kinds of communications that lovers may be tempted to use, particularly at this time of year.

Charles Pigott, professional support lawyer, Mills & Reeve