It has come to my attention that two of my employees may be having a romantic relationship. What should I do and be aware of? Should I have a policy on this sort of thing?
Your first task is to work out whether this relationship is real (you refer only to “may be”) and if it is, why it concerns you. Proving some adverse impact which it does or could have on your business really is a pre-condition of your taking any action in connection with it.
That impact could arise through a number of routes. If one party is managing the other then there is the risk (or, almost as dangerous, the scope for perception of the risk) of favouritism or bias in questions of remuneration, opportunity or advancement. Your employees may embarrass colleagues or clients by making doe-eyes at each other in meetings. Enquiry might show that they spend their days emailing sweet nothings to each other rather than working. Their relationship may put at risk any internal “Chinese walls” or other confidentiality structures or (especially if one is in HR) lead colleagues to believe that their integrity is compromised. Taking a less romantic view obviously leads to consideration of the scope for trouble if and when the relationship breaks down – will they be able to maintain a proper professional decorum, or will there be slammed doors, tears and allegations of harassment and victimisation?
There is an enormous volume of decided case law in this area, some of it tragic, some pathetic and some really quite hilarious. In the end, however, these decisions are all fairly fact-specific, and your response must be the same. It is partly this that makes a policy on these things so hard to implement. In putting rules together, you have to bear in mind also that some of the concerns above would be equally valid if your employee’s other half worked for a competitor, or if they were married rather than “in a romantic relationship”. The only sensible policy is one that says, in broad terms, that your private life is your own and we will take no interest in it unless and until it impinges adversely on the business, at which point we reserve the right in consultation with you to take such remedial steps as we reasonably see fit.
What might those steps be? Obviously it depends very much on the problem, but you could consider disciplinary action if you can show that the relationship had led to inappropriate behaviour in the office (anything from time wasting via favouritism to a novel use for the boardroom table), or just a “word to the wise” if the rumours are untrue but being fed nonetheless by some inadvertent conduct on the part of the two employees. Where the concern is pre-emptive – something may go wrong between manager and subordinate but has not done so yet – you may be able to suggest to both parties that it would be in their best interests to agree a change in reporting lines or at least the insertion of an independent third party at appraisal and salary review time.
There are some risks for you here, particularly on the discrimination front. If you move the junior of the two this is statistically more likely to be the female, so that should not be an automatic first step. Second, if you have grounds to object to in-house relationships, this should be the case irrespective of whether they are same-sex or heterosexual. Finally, a recent cautionary tale from the employment tribunals: despite the obvious question of how far an employee’s right to a private life should extend to those parts of it conducted in front of his or her colleagues, any gossip or rumour-mongering by management can lead to claims for constructive dismissal and/or discrimination. Unless you have good grounds to act, therefore, a dignified silence is the proper response.
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David Whincup, partner and head of employment, London, Squire Sanders Hammonds
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