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          Workplace romances: What are the parameters?

          The workplace romance can be a potential headache for employers, giving rise to a host of employment law issues. Valentine's Day therefore seems like a good time to provide an outline of the legal parameters for employers.

          Date: 14/02/2019

          Most of us will spend over 50% of our working days with colleagues within our organisation and the pressures of working life often means that we form strong bonds with them. As a result, forming a romantic relationship in or around the office environment is a frequent occurrence. Whether it be a passing fling, long term dating or something that leads to wedding bells, the highs and lows of the workplace romance can have a significant impact on the work environment for not only the couple involved but also those around them. 

          In particular, for every successful workplace relationship, there are also those that may end in heartbreak and the latter can cause many potential difficulties in the workplace.

          Common difficulties for employers 

          Issues frequently arise when a workplace relationship comes to an end. The fallout has the potential to impact the mood and productivity of an entire team, but more significantly could result in accusations of harassment, discrimination, bullying or even unfair dismissal claims. 

          Under the Equality Act 2010, anything done by a person in the course of his or her employment must be treated as also done by the employer, unless the employer can establish the "reasonable steps defence".  As a result of this, the employer can be held liable for the actions of its employees.  

          The recent #metoo campaign has encouraged the empowerment of both victims and witnesses of sexual harassment to challenge and improve workplace cultures, in particular by raising the awareness of consent. Recent reports have shown both women and men to suffer regular encounters that amount to sexual harassment rather than a mutual romance, with reports of unwanted advances from co-workers.

          Unfortunately, these issues do not end when a relationship between a manager and one of his or her team members is consensual. Romances involving a junior and senior member of staff can incite gossip and envy, leading co-workers to believe that such connections may influence promotions and pay raises unfairly. Further the risk of collusion increases in roles following the 'four eyes' principle where two people are required to sign off or approve an action. If those two people are in a relationship, it might impact, or be perceived to impact, their independence and integrity.  Further, it is all too common when relationships come to an end that  allegations of harassment and unfavourable treatment are made, often by the junior party against the senior employee. 

          The legalities: 

          Harassment
          Harassment is defined as unwanted conduct which has the purpose or effect of violating an employee's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.  It can happen on its own or alongside other forms of discrimination and must be related to a protected characteristic under the Equality Act 2010. Unwanted behaviour in this context could include spoken or written words of abuse; offensive comments, including those on social networking sites; images; gestures or even facial expressions. Sexual harassment is specifically defined  in the Equality Act as unwanted conduct of a sexual nature which has the purpose or effect of either violating a person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

          Discrimination 
          A claim for direct discrimination may be brought where an employee feels they have been treated less favourably because of a protected characteristic compared to an employee who does not share that characteristic. The most commonly pursued protected characteristic associated with claims arising from workplace relationships is sex. 

          Love contracts?

          Some employers have considered the possibility of enforcing a 'love contract' between romantically involved employees, a concept which originated in the USA. A love contract policy establishes workplace guidelines for dating or romantically involved employees. The purpose of the policy is to limit the liability of an organisation in the event that the romantic relationship of the dating couple ends. Both employees in the consensual dating relationship would be required to sign the document declaring that the relationship is by consent.  Such contracts have not taken off in the UK  and remain quite rare.  Their enforceability may well be questionable as a contract cannot usually override any liability that may arise under existing statutory law.  They may also arguably amount to a breach of an employee's right to a private life under the Human Rights Act, where applicable.

          Comment

          Evidently personal relationships at work can result in problems and many employers now choose to have a policy on relationships at work.

          Minimising the risk

          It is advisable for any employer to:

          • Strike a balance between employee's right to a private life and the employer's right to protect its business interests.
          • Encourage employees to keep work and personal life separate, and to stay professional both when things are going well, and when they are not.
          • Stress that employees must not allow a personal relationship with a colleague to influence their conduct at work.
          • Include a requirement to disclose to the employer any work relationship that may give rise to a conflict of interest.
          • Act upon any complaints swiftly and appropriately.
          • Provide guidance to line mangers on managing personal relationships at work.
          • Provide managers and employees with sexual harassment training. 
          • Ensure policies and procedures are up-to-date covering this kind of conduct, for example, equal opportunities, bullying and harassment and disciplinary/grievance policies.  

          Authors: Anna Blythe & Joanne Frew 

          Related people

          Joanne Frew

          • Partner // Head of Employment (Manchester)